The Right to Keep and Bear Arms -- A Primer for Physicians (C) by Edgar A. Suter MD DRAFT DRAFT Chair, Doctors for Integrity in Research & Public Policy CIS:73407,3647 (uploaded at Dr. Suter's request) Abstract To palliate violence in our society some medical societies and journals have proposed draconian gun restrictions and prohibitions. The individual Right to Keep and Bear Arms as an impediment to such proposals has usually been overlooked or denied. This article discusses historical and contemporary case law and scholarship regarding the right. Of particular concern are constitutional and natural rights protections of the right to arms. Introduction A few professional societies(1,2) and editors(3) have proposed bans and draconian restrictions on the private ownership of certain classes of firearms. If constitutional impediments to these proposals are discussed at all, the obstacles are offhandedly or incorrectly dispatched. It is instructive to review a representative example of misinformation, the recent American Journal of Public Health article by gun control advocates, Vernick and Teret.(4) Those authors asserted that "the Second Amendment poses no real obstacle to the implementation of even broad gun control legislation." Like most gun prohibitionists, Vernick and Teret failed to acknowledge key elements in the debate on the Right to Keep and Bear Arms (RKBA). The US Supreme Court has repeatedly upheld the individual Right to Keep and Bear Arms -- explicitly protecting an individual right to keep and bear military style weapons -- and rejected the 20th. Century invention, the discredited "collective right only" theory of the Second Amendment. Considerable legal scholarship also supports an individual Right to Keep and Bear Arms.on grounds other than the Second Amendment. Vernick and Teret's erroneous contention that there is no individual right to arms descended from a common misunderstanding of "militia." Importantly, they failed to note that in federal law and US Supreme Court holdings, the "militia" is not an organized group, it is a system in which individual citizens, a pool of military-age men armed with their own weapons, are available to serve the collective defense. The linchpin of the "collective right only" argument falls. Citing holdings of the US Supreme Court out-of-context, Vernick and Teret furthered their deception by claiming solace in the US Supreme Court's refusal to hear certain lower court cases. Not only were Vernick and Teret out of touch with case law, they were unfamiliar even with the contemporary legal literature. Of 37 articles on the RKBA in the legal literature since 1980, 33 support the individual right view and dispute the "collective right only" view of the RKBA.(5) Of the remaining pathetic minority of 4 articles,(6) 2 were written by an employee of Handgun Control Inc., one by a non-attorney lobbyist for the National Coalition to Ban Handguns, and only one was a peer reviewed article. Is the legal literature held captive by that bte noire, the National Rifle Association (NRA)? Are so many legal scholars mere lackeys of Satanic, blood-thirsty, profiteering gun manufacturers? Or, is the NRA, as a civil rights advocacy group over a century old and supported by over 3.3 million members, on solid ground in defending the individual RKBA? Eschewing the bigotry and emotive imagery that too frequently characterizes the debate,(7) let us review relevant concerns. Is there any RKBA at all? What do the US Constitution and the Bill of Rights say? Who are "the people"? What is the "militia"? What have the courts said? What do legal scholars say? What historical evidence is there? If there is an individual RKBA, what guns does it protect? How far can "gun control" go? This article strives to provide the best answers possible based on contemporary and historical resources. The purpose of this article is not to discuss the merits or demerits of gun ban proposals; instead this article will consider whether or not such proposals, if implemented, would likely be found constitutional. It would not be productive for the medical community to expend time, effort, and money promoting measures likely to be discarded by the courts, even if proponents became able to demonstrate a significant public health benefit from their proposals. For example, though the public health evidence suggests that outlawing television would save lives, courts would not allow such a "prior restraint" violation of First Amendment rights, and the public health community would be wasting resources to pursue such advocacy. Interestingly, while the criminological literature has, after decades of research, rejected the hypothesis that guns and gun ownership cause violence, there is increasing literature that indicts violent television and sensationalized journalism as a cause of crime.(8-11) For assessment of the merits or demerits of gun ban proposals, the reader is referred to any of the comprehensive reviews of the subject, such as the National Institute of Justice studies,(12,13) the review by Kleck (that in 1993 won the American Society of Criminology's Hindelang Award as "the most important contribution to criminology in three years"),(14) the cross cultural or other analyses by Kopel(15,16,17) or Kates,(18) the assault weapon monograph by Suter,(19) and the study of violence and homicide reduction asociated with concealed weapon carriage by good citizens.(20) Those readers familiar only with the medical literature on guns should review the criticisms of methodology and conclusions,(21) documentation of "sagecraft,"(22) false citations, fabrication of data, and other "overt mendacity" in the medical literature on guns,(23) and thorough reviews of Centers for Disease Control (CDC) bias.(24,25) Right to Keep and Bear Arms -- the Second Amendment A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. -- Second Amendment, US Constitution the Second Amendment Gun prohibition advocates claim the reference to "Militia" affirms only a states' right to maintain organized armed forces as an outmoded check upon federal power.(4,26) That claim does not survive examination of: 1. the Supreme Court's contextual and linguistic examination of the term "the people," 2. the pre-emptive federal definition of "militia," or 3. the history and commentary on the Bill of Rights. who are "the people"? Do the First Amendment rights of "the people" refer only to a "states' right" to freedom of speech, press, religion, assembly, and petition the government to redress grievances? Do the Fourth Amendment rights of "the people" actually refer to a "states' right" to be secure in "their persons, houses, papers, and effects against unreasonable searches and seizures"? Do the Ninth and Tenth Amendment unenumerated and reserved rights of "the people" actually refer to "states' rights"? Since each instance distinguishes between "the people" and the government, it is impossible to make a credible argument that these are "states' rights" rather than individual rights -- and so the courts have ruled. To claim that "the people" who have the RKBA are actually the state governments and not the same "the people" who have First, Fourth, Ninth, and Tenth Amendment protections requires some rather unlikely assumptions. Did the authors of the Bill of Rights use the term "the people" in the First Amendment to refer to individuals, then, 28 words later, use the term "the people" in the Second Amendment to refer to the government, then, 44 words later, use the term "the people" in the Fourth Amendment and four and five articles later, in the Ninth and Tenth Amendments, to refer to the individual? The US Supreme Court has rejected such convoluted logic. In US v. Verdugo-Urquidez,(27) a case holding that Fourth Amendment protections do not apply to the search of a home in a foreign country, the Supreme Court held that "the people" who have the right to free speech, to peaceably assemble, and to be secure in their papers and effects are one and the same as "the people" who have the right to keep and bear arms. The authors of the Bill of Rights did not somehow confuse "the people" with "the government." "People" have rights and the "government" has powers . Importantly, rights are not "granted" by the Constitution. Rights are pre-existent and irrevocable, guaranteed by the Constitution, and, hopefully, respected and protected by the government. History shows, however, that government respect and protection of individual rights, at the expense of its own power, is the exception, rather than the rule. At one time, the US was a shining exception. Now, having forgotten the lessons of history, the view holds sway that individual rights, individual responsibility, excellence, and freedom must yield to order, dependency, collectivism, egalitarian mediocrity, and expediency. The current administration's "communitarian" philosophy subordinates the individual to the state, a view that is antithetical to the founding principles of our republic. In America the government is supposed to serve, not rule, "the people." In contrast with the inherent nature of the rights of the people, the powers of the state are not inherent, but are derived from the "consent of the governed." Justice Brennan, dissenting from the US v. Verdugo-Urquidez opinion for other reasons, reminded us that rights are not granted or rescinded by fickle government whimsy or expedience: "(rights are not) given to the people from the government... (T)he Framers of the Bill of Rights did not purport to 'create' rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre- existing."(28) The powers of the state regarding the militia are delegated by the people and were delimited in the body of the US Constitution(29) preceding the Bill of Rights. The power of the states to raise their own militias and the power of the federal government to raise an army are not exclusive of the irrevocable right of the people to keep and bear arms for protection against violence and oppression. It is groundless to assert that the Second Amendment protects powers delegated to the government. what did the "Founding Fathers" say? The great object is that every man be armed. -- Patrick Henry Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense? Where is the difference between having our arms in our own possession and under our direction, and having them under the management of Congress? If our defence be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? -- Patrick Henry ... to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them... --Richard Henry Lee, Additional Letters from the Federal Farmer 53. 1788. The power of the sword, say (those who oppose ratifying the Constitution), is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth right of an American.... (T)he unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people. -- Tenche Coxe, Pennsylvania Gazette, February 20, 1788. ...the advantage of being armed, which the Americans possess over the people of almost every other nation... Notwithstanding the military establishments in the several kingdoms in Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms -- James Madison, The Federalist, No. 46 Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealously will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. -- Noah Webster, An Examination of the Leading Principles of the Federal Constitution. Philadelphia. 1787. Those who framed our Constitution and Bill of Rights were students of history. They knew that the importance of an armed citizenry to preserve liberty and as a deterrent to oppression had been recognized for over two millennia. Aristotle valued an armed citizenry to protect democratic polity as much as Plato feared an armed citizenry as a threat to monarchical absolutism, his "philosopher king." Cicero understood that the preservation of the Roman republic depended upon an armed citizenry as much as the preservation of the Roman empire depended upon Julius Caesar's standing army and the disarmament of the Roman underclass and conquered peoples. Germanic tribes tied arms to the rights and duties of free men so strongly that the presentation of arms was required in the ceremony freeing slaves.(30,31,32) The right, even duty, in English law to keep and bear arms predated even the development of firearms. The right to arms for self defense predated concerns about freedom of worship by a millennium . Under the rule of Alfred the Great in 872 A.D., even peasants were required to privately purchase arms and to be available for military duty. The existence of the right to arms, then as today, did not imply that the right was free from assault or infringement. Regrettably, gun control has often been intended and used, to disarm vulnerable minorities. The earliest English arms control law, Henry II's Assize of Arms of 1181, though guaranteeing a right to arms for most, targeted Jews and left them helpless against pogroms.(33) Our Second Amendment guarantee of the right to arms reflects our Founders' knowledge that France first disarmed all but its nobility and then Protestant nobles (in aid of their forced conversion to Catholicism); and that England's Catholic King James II was overthrown for trying to disarm Protestants -- who then disarmed Catholics.(34,35) The struggle between the British monarchy and the Parliament often involved assaults by despotic kings upon the common law right to arms. Whether an assault upon the right, such as Henry VIII's 1514 A.D. extension of his ban on crossbows to include "handgonnes," or a defense of the right, as in the Declaration of Rights following the Glorious Revolution of 1688, the focus was always upon the most powerful and useful military weapons of the time.(30,31,32) Significantly, unlike the protective and military use of arms, the British have consistently maintained the sporting and hunting use of arms as an elite preserve of the aristocracy. Placed in the proper context of self-protection against criminals and tyrants the Right to Keep and Bear Arms has little to do with "legitimate sporting use," an irrelevant distraction in the contemporary debate. Self- protection, not sport, is the overriding concern. In proper context, guns are made for only one thing - protection. US Supreme Court Justice Oliver Wendell Holmes concluded in Patsone v. Pennsylvania, without needing to invoke the Second Amendment, that a ban on aliens' possession of long arms was permissible as a hunting regulation, because the ban did not extend to handguns which would be needed "occasionally for self defense."(36) As early as 1623 in the American colonies, Virginians were required to carry arms and to maintain stores of ammunition. The colonists were therefore well-armed for the revolution that followed, a revolution that was sparked by British efforts to seize colonists' arms at Lexington and Concord. While founding our nation, the Federalists and anti- Federalists agreed, even took for granted as an extension of English common law, that the right to arms was an inherent right of individual citizens. Though agreeing upon the inherent rights of free people, the Federalists and anti- Federalists disagreed on the extent to which those rights needed to be codified and disagreed on the desirability of a standing army. Anti-federalist patriots such as Patrick Henry, Thomas Jefferson, and George Mason spoke eloquently against a standing army as the bane of liberty. They felt that the armed citizenry, in their words, the "militia," was the most important deterrent to despotism. They abhorred a "select militia," such as today's National Guard, because it is a threat to freedom as fearful as a "standing army."(37) Congress may give us a select militia which will, in fact, be a standing army - or Congress, afraid of a general militia, may say there shall be no militia at all. When a select militia is formed; the people in general may be disarmed. -- John Smilie Their intent for the Second Amendment was stated most succinctly by Patrick Henry -- "The great object is that every man be armed."(38) As the United States Senate Subcommittee on the Constitution has documented in their 1982 report on the Right to Keep and Bear Arms, nowhere in the documented debates on the Second Amendment is there any suggestion by anyone that the right was anything but a right of individuals.(30,31,32) Indeed, the falsity of the "states' right" or "collective right only" interpretation of the Second Amendment is underscored in observing that such an interpretation is exclusively a 20th. Century invention of which no inkling is found in any pre-20th Century discussion of the Second Amendment, legal commentary, or case.(34) what is the "militia"? The signification attributed to the term "militia" appears from the debates in the Convention, the history and legislation of the colonies and the states, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense... and further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. -- the US Supreme Court in US v. Miller(39) The militia of the United States consists of all able- bodied males at least 17 years of age... and under 45 years of age. -- United States Code, Title 10, Section 311(a) The section of the United States Code following the definition of the general militia defines what James Madison and the other Founding Fathers considered a "select militia" such as today's National Guard.(37,40) Though grossly discriminatory, under current law, the only female members of the "militia" are the female officers of the National Guard. Failing to understand that the National Guard is only one small component, far from the totality of the "militia," has allowed those who disdain the Second Amendment to advance plausible and politically useful misinterpretations. The numerous papers and statements of the authors, signatories, and commentators of the Bill of Rights, statutes, and case law show unequivocally that today, as always intended by the Framers of our Constitution and Bill of Rights, the general "militia" consists of Americans armed with their own guns. According to Congress,(41) in order to allow sending the National Guard overseas, the Guard has been established under the Congressional authority to "raise and support armies,"(42) not under Congressional authority "to provide for organizing, arming, and disciplining the militia."(29) All Americans were reminded of this in the 1989 US Supreme Court decision Perpich v. Department of Defense(43) which prevented governors from withholding their National Guard units from exercises outside the United States. the "living constitution" It has been argued that the Second Amendment should be invalidated because its Framers could not have possibly envisioned the firepower available today. By such logic the First Amendment could be invalidated. After all, could the Framers have envisioned the power of the mass media oligarchy and all their high-tech tools (satellite links, "high capacity" printing presses, computers, cable television, etc.) to spread deceit and misinformation? Right to Keep and Bear Arms -- the Courts There are very few US Supreme Court cases that even tangentially touch upon the Right to Keep and Bear Arms. The most recent of the cases directly addressing right to arms issues is the 1938 US v. Miller case. The US v. Miller decision is often cited and misunderstood. It is the case that acknowledged the individual citizen's right to own military weapons -- "part of the ordinary military equipment" or which "could contribute to the common defense." Miller was freed at the federal district level, on Second Amendment grounds, from charges of possession of a "sawed-off" shotgun for which he had not paid the tax required under the National Firearms Act of 1934. The federal prosecutor pursued an appeal. Miller died before the appeal reached the Supreme Court leaving his position unargued. No evidence that a "sawed-off" shotgun was a "militia" weapon had been introduced by Miller. The Court held that, absent formal evidence submitted by Miller, it could not take "judicial notice" of whether or not a "sawed-off" shotgun was a protected weapon. Because Miller's position was unargued, his indictment was upheld --leaving gun prohibitionists confused, mistakenly thinking that the Court found against an individual right, when, in fact, the Court upheld an individual right to own military weapons. The Supreme Court had only stated they had no knowledge of whether or not a "sawed-off" shotgun was a military weapon. One simple fact is never mentioned by gun prohibitionists. The United States' brief in US v. Miller urged the Supreme Court to accept the "collective right only" theory. The Supreme Court refused.(44) It is not surprising that Vernick and Teret failed to acknowledge the explicit Supreme Court holdings unsupportive of their prohibitionist view. It is shocking, however, that Vernick and Teret would pervert the findings of US v. Miller, and that the American Journal of Public Health peer review did not catch the falsification. is there solace in "denial of cert"? As elucidated by the paid general counsel of Handgun Control Inc., the "collective right only" or "prohibitionist theory" rests largely on the refusal of the Supreme Court to hear certain gun cases (denial of certiorari appeal petitions),(26) rather than on the Court's explicit holdings. For example, the 1983 refusal of the US Supreme Court to hear a case, "denial of cert," against the Village of Morton Grove's ban on handguns(45) is treated by gun prohibitionists as though it were a Supreme Court holding in support of gun prohibition. As a simple matter of law and procedure, "denial of cert" quite simply means that "fewer than four members of the (Supreme) Court deemed it desirable to review a decision..."(46) Supreme Court Procedure is clear; acceptance or denial of certiorari petitions to obtain Supreme Court review of a lower court case is entirely a matter of the Supreme Court Justices' discretion, discretion that often relates to little more than the crushing caseload presented annually to the Supreme Court.(47) Though Handgun Control Inc. implies otherwise, the lower court opinion in Quilici v. Village of Morton Grove is not the law of the land. Right to Keep and Bear Arms -- the Ninth Amendment The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. -- Ninth Amendment, US Constitution Though the debate often focuses on the Second Amendment, there is increasing legal scholarship that finds support of the Right to Keep and Bear Arms in Ninth Amendment "unenumerated" rights,(48) Fourteenth Amendment "due process" and "equal protection" rights,(49-52) and natural rights theory.(34) During the debates on the Bill of Rights there was disagreement regarding the necessary degree of detail in which rights needed to be catalogued. For example, did there need to be acknowledgment of the right to eat and dress as one chooses? A balance was struck and the Ninth Amendment was agreed to be the protection of innumerable rights presumed to be pre-existent. It is clear from the debates and other contemporary papers that the framers, without exception, believed in the right, even duty, to self-protection. Unarguably, a right to self-protection would be empty without the means of self-protection, including then, as now, firearms and ammunition. To suggest that one has inalienable rights to life, liberty, and pursuit of happiness, but not the means to protect those rights leads to unacceptable corollaries. To disarm citizens forces dependency upon a government that is expected to benevolently, competently, and equitably protect its citizens. Such blind and misplaced trust squares neither with history, with the framer's fear of collective power in general, nor with their fear of federal and state collective power in particular.(48) the safest and most effective means of self protection To maintain that firearms are necessary for self- protection, it must be demonstrated that, in balance, guns are effective tools of self-defense. Caveats about earlier estimates of 1 million protective uses of guns each year(14) have led Kleck to perform the largest scale, national, and methodologically sound study of the protective uses of guns. The best concordant and existent estimates suggest that good Americans use guns to protect themselves and their families between 800,000 and 2.4 million times each year(53) -- as many as 75 lives protected by a gun for every life lost to a gun, as many as 5 lives protected per minute. Defense with a gun results in fewer injuries to the defender (17.4%) than resisting with less powerful means (knives, 40.3%; other weapon, 22%; physical force, 50.8%; evasion, 34.9%; etc.) and in fewer injuries than not resisting at all (24.7%).(14) Guns are most effective and safest means of protection. This is particularly important to women, children, the elderly, the handicapped, the weak, and the infirm, those who are most vulnerable to vicious predators. Perhaps the 19th. Century aphorism should be updated to "God made woman and Lady Smith made her equal." aren't guns dangerous? To suggest that science has proven that defending oneself or one's family with a gun is dangerous, gun prohibitionists often claim: "a gun owner is 43 times more likely to kill a family member than an intruder." This is Kellermann and Reay's flawed risk-benefit ratio for gun ownership,(54) heavily criticized for its deceptive approach and its non- sequitur logic.(14,55,56) Unfortunately this fallacy is one of the most deceptive and misused slogans of the well-funded anti-self-defense lobby. The true measure of the protective benefits of guns are the lives saved, the injuries prevented, the medical costs saved, and the property protected -- not the burglar or rapist body count. Since only 0.1 to 0.2% of defensive gun usage involves the death of the criminal,(14) any study, such as Kellermann and Reay's study, that counts criminal deaths as the only measure of the protective benefits of guns will expectedly underestimate the benefits of firearms by a factor of 500 to 1,000. Interestingly, the authors themselves described but did not use the correct methodology. They acknowledged that a true risk-benefit consideration of guns in the home should (but did not in their "calculations") include "cases in which burglars or intruders are wounded or frightened away by the use or display of a firearm (and) cases in which would-be intruders may have purposely avoided a house known to be armed...."(54) Objective analysis, even by Kellermann and Reay's own standards, shows the "43 times" comparison to be deceptively appealing, though only a specious contrivance. Kellermann's recent "2.7 times" comparison(57) suffered from the same errors of logic and method. the myths of police protection It has been argued than guns are not needed by citizens because citizens are incompetent in gun use, likely to injure themselves or other innocents, and, besides, citizens are protected by the police and the military,. Those arguments collapse under examination from any direction. Recognizing current crime rates, recognizing that citizens already use guns to repel crime 7 to 10 times as frequently as the police,(14) and recognizing that of shootings by citizens only about 2% are wrongful compared with 20% wrongful shootings by police,(18) the effectiveness of police protection can be rightfully questioned. A significant, if not majority, of police activity involves "mopping up" after the crime has already occurred. Since violent or other criminal assaults do not come pre- announced, the police cannot always be where they are needed, so police will be more effective in apprehension than in protection. This, of course, is exactly the role assigned to police, though research suggests that police apprehension offers less deterrent to criminals than the threat of encountering an armed victim.(13) How many police officers would be necessary to replace the benefits of today's armed citizen protecting themselves and their families, repelling and deterring crime? At what cost? Can the public coffers afford round-the-clock protection for all? Many are surprised to discover that the police do not have any legal obligation to provide protection to individuals, even if in immediate danger.(58) An oral promise to respond to an emergency call for assistance does not make the police liable to provide protection.(59) Statutes(60) and legal precedents(61) are clear that the police only have a responsibility to provide some general level of protection to the community at large. Citizens have been and continue to be responsible for their own protection. The withdrawal of police protection from riot-torn areas of Los Angeles and the two day delay in putting National Guard soldiers on the streets of Los Angeles exposed the illusion of public protection. Additionally, it is disturbing to recall that armed citizens had to protect themselves from the police and US National Guard soldiers who were looting in the aftermath of Hurricane Hugo.(62) Throughout American history we have innumerable examples of crime, terrorism, civil disorder, and natural disasters, where the police and military forces have been unable or unwilling to protect citizens, often for racist or political reasons.(63,64,65) Though the police have an admittedly difficult and important job, police riots and other police abuse of authority, collective and individual, are frequent in the US.(66) One can rightfully question the wisdom of sole reliance upon the police or military in times of need. Disarming citizens forces them to be dependent upon collective security measures that are demonstrably ineffective and unfairly distributed. It is difficult to reconcile the value of the individual's life and the subordination of the state, precepts upon which this nation was founded, with a forced dependency upon a demonstrably ineffective and inequitable government. With the government's demonstrated incompetence and mendacity evident in less important realms, how can we trust our lives to their ministrations, reduced to little else than passive spectators when our lives are in danger? In the view of one author, it reduces the right of self preservation to the First Amendment right to scream "911."(48) The situation would be much like telling a climber that all ropes will be collectively controlled. If he begins to fall, then he need only call and an agent of the government will be dispatched to bring the rope that will prevent his injury or death. Unfortunately, once the need for the resource arises, assistance will in many instances be too late. Taking the analogy further to incorporate the additional problem of limited resources by assuming that there are at any one time one hundred actual climbers, thousands of potential climbers and only five rope administrators, together with the acute nature of the need, we should question the wisdom of the decision which prohibited self-help and individual ownership of ropes.(48) the myth of invulnerability It has been claimed that guns are not needed by citizens and that the "militia" is outmoded because Americans are protected by the military, including the National Guard, from outside invasion. While the Army and National Guard were on foreign soil waging the World Wars, it was organized gun clubs and individual gun owners, the "militia," that protected the home front. It was armed citizens who patrolled to prevent sabotage such as World War I's "Black Tom" explosion. In fact, it was the generosity of American gun owners that provided weapons to the British, who, though proud of being disarmed and civilized, were bereft of the tools needed to defend themselves from the armed and uncivilized. Of course, immediately after the war, the British dumped those American guns at sea, since, certainly, those weapons would never again be needed. History cannot repeat itself - or can it? During the Gulf War Saddam Hussein promised to bring the war home to the American people. The Army and National Guard were outside the country and collective police security focused upon public assets, utilities, and transportation resources. Had Saddam Hussein attempted to make good his threat against the American people, armed citizens, the "militia," would have been our country's final line of defense. the myths of government benevolence and the futility of resistance It has been claimed further that guns are not needed by citizens and that the "militia" is outmoded because no internal tyranny or abuse of collective power is possible in the US and, besides, today's military and police are so well armed that individual or organized armed resistance by citizens would be futile. Events of this century give lie to such claims of government benevolence. It is ignorance, complacency and arrogance that allow a claim, "It can't happen here." Though Christian European-Americans may have few relevant recollections, religious and ethnic minorities would be among the first to dispute pious claims of government benevolence and competence. Many in the mainstream might consider the alternative of armed resistance (by Japanese-Americans who, during World War II, had their property seized as they were interned in concentration camps) to be useless and counterproductive. From the perspective of the victim, the choice between submitting to such grave depredations or fighting, even without the hope of prevailing, might weigh out differently. Certainly, we would expect that any one of the framers who found himself suddenly in the circumstances faced by many Japanese internees would have chosen to fight and die rather than submit his life and property to such an unrestrained exercise of collective power. Indeed, the abuses that were used to rationalize the colonies' revolt against England pale in comparison.(48) African-Americans had arms which preserved civil rights workers' lives during the years when Washington shrank from curbing Klan terrorism for fear of offending the South's all- white electorate. Rev. Martin Luther King, Jr. preached non- resistance to non-lethal violence, not to outright lynching (between 1882 and 1968, 4,743 persons were lynched). His and other civil rights leaders' bodyguards carried concealed handguns illegally. Some leaders carried their own as well.(63) The result when criminals know victims are armed is not more violence but less. Encountering armed resistance, Klansmen usually backed off. And police, though inactive when unarmed civil rights workers were beaten or murdered, discovered the need to step in and neutrally keep the peace when the intended victims appeared ready to defend themselves. Innumerable firearms, such as those of the Deacons for Defense and Justice, played a key role in protecting civil rights workers. The reader, if unconvinced of the long history of racist police and government abuse, is referred to the meticulous documentation provided by Law Professors Cottrol and Diamond.(63) As to claims of the futility of armed resistance against technologically-developed adversaries, one need only note that industrial countries have fared poorly at the hands of motivated patriots. Consider the fate of the French in Indochina and Algeria, of the Americans in Viet Nam, and of the Soviets in Afghanistan. has the life of the individual been subordinated to state policy?... or to the whims of the elite? If citizens were disarmed, would the price of disarmed lives lost be worth it? Do American lives belong to the state to decide who shall live or die? ...who may and who may not have the means to protect themselves? Is our government our servant or our master? Is the efficiency, order, and survival of the government, our servant, more important than our survival as its masters? These troubling questions arise the instant that citizens are forced to depend upon the government for their lives, their liberty, and their happiness. It seems incongruous - or elitist - for Congressman Stephen Solarz and Senator Teddy Kennedy to argue that citizens do not need guns for protection and consistently deny that individuals have a right to arms yet their bodyguards have been arrested on Capitol Hill for weapons violations (toting 9mm semiautomatic pistols and submachine guns respectively).(48) How can Senator Dianne Feinstein zealously and melodramatically advocate handgun prohibition for citizens, yet avail herself of the privilege of a concealed handgun license (or sham deputization as a US Marshal) so that she may enjoy the protective benefits of a handgun that she would deny to those she "serves" (It is) difficult to justify...permitting government agents, whom we ideally characterize as servants, to enjoy a level of security, provided in part by firearms, unavailable to the general population. Such a result leads to the conclusion that those in positions of power in government are distinct from servants whose lives are somehow worth more than the lives of citizens. It then follows that our constitutional system is designed to tolerate a tier of elite whose interest in personal security exceeds that of citizens merely because of their positions in government. Our constitutional tradition, based on the concepts of limited government serving the citizenry and legitimate fear of the power vested in government, seems at odds with such conclusions.(48) If one distrusts government or considers self-preservation at least as important as collective interests, then one might conclude that individual citizens may choose to own the same type of weapons carried by the police and individual soldiers. Given the adventuresome and provocative nature of American foreign policy, thoroughness demands than one explore whether Americans would be more secure from external threat and from internal abuse if the government and its innumerable agents had fewer means of mischief, denied possession of weapons not owned by the people. Right to Keep and Bear Arms -- the Fourteenth Amendment and Racism Are the states free to violate rights that the federal government may not violate? This question is the crux of the Fourteenth Amendment "incorporation" issue. ...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.... -- Fourteenth Amendment, US Constitution The language seems clear, yet the US Supreme Court has denied "total incorporation" of the Bill of Rights to protect all civil rights against state infringements. The Supreme Court has instead chosen the path of "selective incorporation," so that a Supreme Court holding is necessary to "incorporate" each civil right against violation by the states. It was not until a 1922 First Amendment case, Prudential Insurance Co. v. Cheek, (67) that the US Supreme Court incorporated any rights against the states. The Second Amendment rights, among others, have not yet been afforded such protection though considerable extent scholarship supports incorporation.(49-52) Curtis' history, a neutral and scholarly history of the enactment of the Fourteenth Amendment, concluded that "the rights that Republicans in the Thirty-ninth Congress relied on as absolute rights of the citizens of the United States were the right(s) to freedom of speech... due process ... and to bear arms." The debate extolled the right to arms or equated its importance to free expression, religious liberty, due process, jury trial, and rights against unreasonable search and seizure. the racist roots of gun control In an infamous 1857 case upholding slavery, Dred Scott v. Sandford,(68) Chief Justice Taney of the US Supreme Court wrote: (If they were citizens,) it would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies...; and it would give them the full liberty of speech...; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. Such repugnant racism, evident even in the US Supreme Court, has motivated much of America's "gun control." The advocates of gun control cannot be proud that the roots of American "gun control" lie in racism and the control of unpopular ethnic and political groups.(63,64,65) In fact, the very first US "gun control" was the denial of arms to African-Americans by the Militia Act of 1792. Nat Turner's slave revolt in 1831 precipitated a flood of laws prohibiting guns to African-Americans. Unsurprisingly, antebellum laws denied slaves access to guns except in limited circumstance -- at the discretion of their masters, only the most trusted slaves might be allowed use of firearms for hunting, but never for self-protection. Antebellum gun laws even targeted free African-Americans. Such laws ranged from "discretionary" (which is to say "arbitrary" and subject to abuse) licensing to carry firearms (Delaware 1831) to laws that, reminiscent of Presidential-candidate Perot's suggestion to cordon the inner city and conduct warrantless house-to-house searches for weapons, allowed white men to arbitrarily enter African- American homes without warrant and to seize weapons without trial (Florida 1833). Neither racism nor racial violence was restricted to the South, as evidenced by the 1831 Providence Snowtown, 1841 Cincinnati, 1834 New York City, and numerous other riots perpetrated upon African-Americans. Since the police had shown themselves unwilling to protect even free African-Americans, the response was to form private militias such as in 1821 Providence ("African Greys"), 1835 Philadelphia, and 1850 Boston.(63) While slavery existed in America, African-Americans were disarmed. Immediately after Appomatox, Southern legislatures enacted special laws to keep blacks in perpetual peonage, including disarming them. The conclusion of the Civil War did nothing to diminish white efforts "to preserve as much of the antebellum social order as could survive northern victory and national law.... As one North Carolina statute indicated: "All persons of color who are now inhabitants of this state shall be entitled to the same privileges, and are subject to the same burdens and disabilities, as by the laws of the state were conferred on, or were attached to, free persons of color, prior to the ordinance of emancipation, except as the same may be changed by law."(63) Foremost amongst those "disabilities" were Black Codes that denied arms to Freedmen: Be it enacted... That no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife... -- from the Act to Regulate the Relation of Master and Apprentice Relative to Freedman, Free Negroes and Mulattoes, Mississippi statute, 1865.(69) ...it shall not be lawful for any for any freedman, mulatto, or free person of color in this State, to own fire- arms, or carry about his person a pistol or other deadly weapon. -- Alabama Statute(63) Such racist recalcitrance manifest legally in the Black Codes and extra-legally by means such as Ku Klux Klan terrorism, goaded northern Republicans into passage of the Fourteenth Amendment. Jonathan Bingham, author of the Fourteenth Amendment's Privileges or Immunities Clause, clearly stated that it applied the Bill of Rights to the states.(51,63) After the Fourteenth Amendment outlawed explicit race-based criteria to deny gun rights, racists turned to outlawing inexpensive arms, "Suicide Specials" in the parlance of the 1870's. In other words, "gun control" turned to deny arms that were affordable to African-Americans and poor agrarian reformer whites.(74) Today's affordable pistols are called "Saturday Night Specials." It should rightfully make gun prohibitionists uncomfortable that, besides evoking the familiar tactic of 19th. Century racists, their buzzword is derived from the deplorable racist epithet, Niggertown Saturday Night.(70) Modern day gun prohibitionists claim that the Fourteenth Amendment civil rights protections have not "incorporated" Second Amendment protections against the states. In other words, prohibitionists claim that state governments are free to violate gun civil rights that the federal government may not violate. With contradictory illogic, they simultaneously claim that there is no individual right to arms. If there is no individual right to arms, what is there to incorporate against the states? How can a "states' right" be incorporated against the state itself? US v. Cruickshank(71)is cited to support non-incorporation of the Right to Keep and Bear Arms. Amongst many Ku Klux Klan terrorist prosecutions, Cruickshank and his co-conspirators had been convicted of disarming African-Americans and depriving them of First Amendment rights. On appeal, the circuit court upheld Cruickshank's conviction and upheld incorporation of both First and Second Amendment protections against state violation but not against purely private acts. In neither the government's nor the defendant's appellate briefs to the Supreme Court was the incorporation issue addressed because only a private conspiracy by the Ku Klux Klan was at issue. While the final holding of the Supreme Court in US v. Cruickshank did not address incorporation of both First and Second Amendment civil rights against state violation, the Court affirmed that the Right to Keep and Bear Arms is not "in any manner dependent upon (the Constitution) for its existence."(71) The US Supreme Court chose not to protect the First and Second Amendment rights of African- Americans against racist terrorists, stating that it was a problem properly left for local enforcement. It is this racist case, giving a "wink and a nod" to Ku Klux Klan terrorists, to which modern day prohibitionists proudly point claiming that states are free to violate Second Amendment rights. US v. Cruickshank dealt a near-fatal blow to the ability of the federal government to enforce the Fourteenth Amendment, an ability that it has yet to fully recover despite more than a century of remedial effort. A decade later, the US Supreme Court when faced with a state, rather than private, deprivation of rights in Presser v. Illinois, again sidestepped the incorporation of the Second Amendment.(72) Presser was convicted of parading 400 men with rifles through the streets of Chicago without having a license from the governor as required under Illinois law. The German immigrants whose stated objectives were the promotion of good citizenship claimed that the Illinois law violated their Second Amendment rights. The US Supreme Court disagreed: We think that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.(72) In other words, the Court upheld Presser's conviction on the issue of private armies, not on the issue of the individual Right to Keep and Bear Arms. As to such individual rights, the Court found: It is undoubtably true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government... the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms.(72) So, while certain state and federal gun controls may be constitutional, gun prohibitions are clearly unconstitutional. Allowable gun controls may not regulate the right into virtual non-existence. Ammunition bans or exorbitant gun or ammunition taxes are precisely the types of "gun control" that would make a mockery of the right. Gun prohibition advocates take a selective and hypocritical refuge in a "guns only" application of a "states' rights" argument. Using a "states' rights" argument that the Bill of Rights fails to protect the right to keep and bear arms from infringement by states uses logic that, if similarly applied, would fail to protect freedom of speech, freedom of religion, and other fundamental rights from state infringement. Would gun prohibitionists return us to the pre- Fourteenth Amendment racist abuses of the Black Codes? The pace of Second Amendment litigation parallels legislative infringements and jurisdictional conflicts, so the Supreme Court is unlikely to indefinitely evade the incorporation issue or to indefinitely find "ways to ignore the constitutional demands imposed by the reconstruction amendments."(63) does racism motivate today's gun prohibition? The rest of the story is all too well known. The Court's denial of an expanded roll for the federal government in enforcing civil rights played a crucial role in redeeming white rule. Th doctrine in Cruickshank, that blacks would have to look to state government for protection against criminal conspiracies, gave the green light to private forces, often with the assistance of state and local governments, that sought to subjugate the former slaves and their descendants.... In the Jim Crow era that would follow, the right to possess arms would take on critical importance for many blacks. This right, seen in the eighteenth century as a mechanism that enabled a majority to check the excesses of a potentially tyrannical national government, would for many blacks become a means of survival in the face of private violence and state indifference.(63) Traditionally, sensational press has linked unpopular minority groups with firearms. The 1911 passage of New York City's Sullivan law intertwined with hatred of immigrant Italians and Jews who were depicted by the press as involved with gang warfare and gun ownership.(74) Enactment of Article 19 of the California Constitution, the anti-Chinese provisions, were preceded by Delegate W.P. Grace's comments, noting that the Chinese in San Francisco "were armed" for the purpose of defending themselves in casethere was a riot.... I am opposed to arming any servile population, or any class, for the purpose of instigating anarchy...." Another delegate decried that "there are Chinamen in San Francisco armed: and today the Chinamen get muskets from white men."(73) Advocates of gun prohibition and the victim disarmament lobby would quickly deny racist motives, yet racist imagery infests the media's treatment of guns and violence. Are not hooded African-American and Latino males with guns the predominant image of violent crime portrayed in broadcast and print journalism?... on COPS?... on police dramas? Consider that during the 1989 debate in California on "assault weapons," San Francisco's CBS affiliate played a five minute segment on criminal statistics, repeatedly returning to the background image of a young African American male admiring an "assault weapon" in a local gun shop. Despite overwhelming data showing that "assault weapons" are barely measurable amongst crime guns,(19) the "assault weapon" debate continues to be driven by false assertions and imagery. Readers should examine the data, become sensitive to the imagery, and then draw their own conclusions. Lest one surmise that only the media is at fault, in 1941 a Florida Supreme Court justice held: I know something of the history of this legislation. ...the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent...and to give the white citizens...a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied.(74) In a Maryland Court of Appeals case upholding manufacturers' liability for the criminal misuse of "Saturday Night Specials," the court described such guns as "ghetto guns."(75) Consider the spate of gun control legislation that, within 48 hours, followed the 1967 appearance of peaceful but armed Black Panthers at the State Capitol. Consider Eddie Murphy's words as Axel Foley in the movie 48 Hours, "I'm your worst nightmare -- a nigger with a gun and a badge." It does appear that legitimate gun ownership and usage by minorities is fearful to some. Much of the contemporary crime that concerns Americans is in poor black neighborhoods and a case can be made that greater firearms restrictions might alleviate this tragedy. But another, perhaps stronger case can be made that a society with a dismal record of protecting a people has a dubious claim on the right to disarm them. Perhaps a re-examination of what the framers of the Second Amendment understood: that it is unwise to place the means of protection totally in the hands of the state, and that self-defense is also a civil right.(63) Conclusion Of course, gun prohibitionists are free to hope for a day when the Supreme Court may rewrite history, fabricate a legal fiction, overturn centuries of law, and support a view that disdains self-protection and subordinates the life, liberty, and pursuit of happiness of American citizens to an all powerful state. Frighteningly, their wishes could come true. Consider that the Supreme Court at one time justified slavery. Consider that racketeering laws as ised against political protestors. Consider today's bizarre legal fiction that allows seizure of assets without conviction, without trial, without even indictment. The substance of the fiction? -- the government is prosecuting property which is "guilty until proven innocent" because assets, unlike people, have no rights. Consider the case of Santa Barbara millionaire David Scott, falsely fingered on a drug warrant only to be murdered by government agents who, according to the Ventura County District Attorney, were motivated by asset forfeiture. Such is the government to whom gun prohibitionists would allow a monopoly on force of arms, trusting that government with our lives and our liberties. Such madness precedes enslavement. Despite efforts by the well-funded gun prohibition lobby to deny or denigrate the individual right to arms,(26) it is their "collective right only" theory that founders. There are serious impediments to handgun, "assault weapon," and ammunition ban proposals. Similar impediments exist for other "gun controls," including exorbitant taxation, that are only a sham for prohibition. So, if gun prohibitionists, pacifists, and the anti-self-defense lobby do not find the protective uses and deterrent effects of firearms to be persuasive reasons for sane, law abiding, adult citizens to own the firearms of their choice, in view of the constitutional impediments to gun prohibition, their only lawful option to accomplish their goal is to convince Americans that they are forever safe in the government's hands, that they have no lawful or natural right to self- protection from predators and tyrants, and then to amend the US Constitution. It is a bizarre symmetry that, as America adopts more centralized, statist control, the burgeoning freedoms of Russia include a newly acknowledged right to keep and bear arms.(76) The wisdom of our nation's founders remains clear; when the government has a monopoly on the tools of coercive force, people can neither protect themselves and their families, nor long remain free. Look to medicine's politicians and determine if those touting "gun control" are the same "statist" medical politicians leading America into the arms of socialized medicine and other collectivist social agendas. It is time our society adopted a Pro-Choice stance on self-defense and gun ownership. Those who would eschew guns then trust their lives and freedom to a rapacious, capricious, incompetent, and uncaring government are welcome to do so, but their dangerous views should not become public policy. Our freedom and our lives are at stake! Endnotes 1 American Medical Association Council on Scientific Affairs. Assault Weapons as a Public Health Hazard in the United States. JAMA 1992; 267: 3070. 2 American Academy of Pediatrics. "Firearms Injuries Affecting the Pediatric Population." AAP News. January 1992; p. 22. 3 Kassirer JP. "Firearms and the Killing Threshold." N. Engl J Med 1991; 325:1647-49. 4 Vernick JS and Teret SP. "Firearms and Health: The Right to Be Armed with Accurate Information about the Second Amendment." Am. J. Public Health. 1993; 83(12):1773-77. 5 Articles supportive of the individual rights view include: Aynes. "On Misreading John Bingham and the Fourteenth Amendment." Yale Law Journal. 1993; 103:57; Amar AR. "The Bill of Rights and the Fourteenth Amendment." Yale Law Journal. 1992; 101: 1193-1284.; Winter 1992; 9: 87-104.; Scarry E. "War and the Social Contract: The Right to Bear Arms." Univ. Penn. Law Rev. 1991; 139(5): 1257-1316.; Williams. "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment" Yale Law Journal. 1991; 101:551.; Cottrol RJ and Diamond RT. "The Second Amendment: Toward an Afro-Americanist Reconsideration." The Georgetown Law Journal. December 1991: 80; 309-61.; Amar AR. "The Bill of Rights as a Constitution" Yale Law Journal. 1991; 100 (5): 1131-1210.; Levinson S. "The Embarrassing Second Amendment" Yale Law Journal. 1989; 99:637-659.; Kates D. "The Second Amendment: A Dialogue." Law and Contemporary Problems. 1986; 49:143.; Malcolm JL. Essay Review. George Washington U. Law Review. 1986; 54: 452-464.; Fussner FS. Essay Review. Constitutional Commentary. 1986; 3: 582-8.; Shalhope R. "The Armed Citizen in the Early Republic." Law and Contemporary Problems. 1986; 49:125-141.; Halbrook S. "What the Framers Intended: A Linguistic Interpretation of the Second Amendment." Law and Contemporary Problems. 1986; 49:153.; Kates D. "Handgun Prohibition and the Original Meaning of the Second Amendment." Michigan Law Review. 1983; 82:203. Halbrook S. "The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts." Vermont Law Review 1985; 10: 255-320.; Halbrook S. "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment." Valparaiso Law Review. 1991; 26:131-207.; Tahmassebi SB."Gun Control and Racism." George Mason Univ. Civil Rights Law Journal. Winter 1991; 2(1):67-99.; Bordenet TM. "The Right to Possess Arms: the Intent of the Framers of the Second Amendment." U.W.L.A. L. Review. 1990; 21:1.-30.; Moncure T. "Who is the Militia - The Virginia Ratifying Convention and the Right to Bear Arms." Lincoln Law Review. 1990; 19:1-25.; Lund N. "The Second Amendment, Political Liberty and the Right to Self-Preservation." Alabama Law Review 1987; 39:103.-130.; Morgan E "Assault Rifle Legislation: Unwise and Unconstitutional." American Journal of Criminal Law. 1990; 17:143-174.; Dowlut, R. "Federal and State Constitutional Guarantees to Arms." Univ. Dayton Law Review. 1989.; 15(1):59-89.; Halbrook SP. "Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment." Univ. Dayton Law Review. 1989; 15(1):91-124.; Hardy DT."The Second Amendment and the Historiography of the Bill of Rights." Journal of Law and Politics. Summer 1987; 4(1):1-62.; Hardy DT. "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment." Harvard Journal of Law and Public Policy. 1986; 9:559-638.; Dowlut R. "The Current Relevancy of Keeping and Bearing Arms." Univ. Baltimore Law Forum. 1984; 15:30-32.; Malcolm JL. "The Right of the People to Keep and Bear Arms:The Common Law Tradition." Hastings Constitutional Law Quarterly. Winter 1983; 10(2):285-314.; Dowlut R. "The Right to Arms: Does the Constitution or the Predilection of Judges Reign?" Oklahoma Law Review. 1983; 36:65-105.; Caplan DI. "The Right of the Individual to Keep and Bear Arms: A Recent Judicial Trend." Detroit College of Law Review. 1982; 789-823.; Halbrook SP. "To Keep and Bear 'Their Private Arms'" Northern Kentucky Law Review. 1982; 10(1):13-39.; Gottlieb A. "Gun Ownership: A Constitutional Right." Northern Kentucky Law Review 1982; 10:113-40.; Gardiner R. "To Preserve Liberty -- A Look at the Right to Keep and Bear Arms." Northern Kentucky Law Review. 1982; 10(1):63-96.; Kluin KF. Note. "Gun Control: Is It A Legal and Effective Means of Controlling Firearms in the United States?" Washburn Law Journal 1982; 21:244-264.; Halbrook S. "The Jurisprudence of the Second and Fourteenth Amendments." George Mason U. Civil Rights Law Review. 1981; 4:1-69. The following treatments in book form also conclude that the individual right position is correct: Malcolm JL. To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge MA: Harvard U. Press. 1994.; Cottrol R. Gun Control and the Constitution (3 volume set). New York City: Garland. 1993.; Cottrol R and Diamond R. "Public Safety and the Right to Bear Arms" in Bodenhamer D and Ely J. After 200 Years; The Bill of Rights in Modern America. Indiana U. Press. 1993.; Oxford Companion to the United States Supreme Court. Oxford U. Press. 1992. (entry on the Second Amendment); Foner E and Garrity J. Reader's Companion to American History. Houghton Mifflin. 1991. 477-78. (entry on "Guns and Gun Control"); Kates D. "Minimalist Interpretation of the Second Amendment" in E. Hickok (ed.), The Bill of Rights: Original Meaning and Current Understanding. Univ. Virginia Press. 1991.; Halbrook S. "The Original Understanding of the Second Amendment." in Hickok E (editor) The Bill of Rights: Original Meaning and Current Understanding. Charlottesville: U. Press of Virginia. 1991. 117-129.; Young DE. The Origin of the Second Amendment. Golden Oak Books. 1991.; Halbrook S. A Right to Bear Arms: State anb Federal Bills of Rights and Constitutional Guarantees. Greenwood. 1989.; LevyL. Original Intent and the Framers' Constitution. Macmillan. 1988.; Hardy D. Origins and Development of the Second Amendment. Blacksmith. 1986.; Levy LW, Karst KL, and Mahoney DJ. Encyclopedia of the American Constitution. New York: Macmillan. 1986. (entry on the Second Amendment); Halbrook S. That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque, NM: U. New Mexico Press. 1984.; Marina. "Weapons, Technology and Legitimacy: The Second Amendment in Global Perspective." and Halbrook S. "The Second Amendment as a Phenomenon of Classical Political Philosophy." -- both in Kates D (ed.). Firearms and Violence. San Francisco: Pacific Research Institute. 1984.; US Senate Subcommittee on the Constitution. The Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution of the Committee on the Judiciary. United States Congress. 97th. Congress. 2nd. Session. February 1982. 6 The pathetic minority supporting a collective right only view: Ehrman K and Henigan D. "The Second Amendment in the 20th Century: Have You Seen Your Militia Lately?" Univ. Dayton LawĘReview. 1989; 15:5-58 and Henigan DA. "Arms, Anarchy and the Second Amendment." Valparaiso U. Law Review. Fall 1991; 26: 107-129. -- both written by paid general counsel of Handgun Control, Inc.; Fields S. "Guns, Crime and the Negligent Gun Owner." Northern Kentucky Law Review. 1982; 10(1): 141-162. (article by non-lawyer lobbyist for the National Coalition to Ban Handguns); and Spannaus W. "State Firearms Regulation and the Second Amendment." Hamline Law Review. 1983; 6:383-408. In addition, see Beschle. "Reconsidering the Second Amendment: Constitutional Protection for a Right of Security." Hamline Law Review.1986; 9:69. (conceding that the Amendment does guarantee a right of personal security, but arguing that that can constitutionally be implemented by banning and confiscating all guns). 7 Kates DB. "Bigotry, Symbolism and Ideology in the Battle over Gun Control" in Eastland, T. The Public Interest Law Review 1992. Carolina Academic Press. 1992. 8 Centerwall, BS Homicide and the Prevalence of Handguns: Canada and the United States, 1976 to 1980. Am J. Epidemiol 1991; 134: 1245-1260 9 Centerwall BS. "Television and Violence: The Scale of the Problem and Where to Go From Here." JAMA. 1992; 267: 3059-63. 10 Centerwall BS. "Exposure to Television as a Risk Factor for Violence." Am. J. Epidemiology. 1989; 129: 643-52. 11 Centerwall BS "Young Adult Suicide and Exposure to Television." Soc. Psy. and Psychiatric Epid. 1990; 25:121. 12 Wright JD. and Rossi PH. Weapons, Crime, and Violence in America: Executive Summary. Washington, DC: US Dept. of Justice, National Institute of Justice. 1981. 13 Wright JD and Rossi PH. Armed and Considered Dangerous: A Survey of Felons and Their Firearms. Hawthorne, NY: Aldine de Gruyter. 1986. 14 Kleck G. Point Blank: Guns and Violence in America. New York: Aldine de Gruyter. 1991. 15 Kopel DB. The Samurai, The Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? New York: Prometheus Press. 1992. 16 Kopel DB. Children and Guns: Sensible Solutions. Golden CO: Independence Institute. 1993. 17 Kopel DB. Why Gun Waiting Periods Threaten Public Safety. Golden CO: Independence Institute. 1993. 18 Kates DB. Guns, Murders, and the Constitution: A Realistic Assessment of Gun Control. San Francisco: Pacific Research Institute for Public Policy. 1990. 19 Suter E. "Assault Weapons" Revisited -- An Analysis of the AMA Report. San Ramon CA: Doctors for Integrity in Research & Public Policy. 1993. 20 Cramer C and Kopel D. Concealed Handgun Permits for Licensed Trained Citizens: A Policy that is Saving Lives. Golden CO: Independence Institute Issue Paper #14-93. 1993. 21 Suter E. Guns in the Medical Literature -- A Failure of Peer Review. San Ramon CA: Doctors for Integrity in Research & Public Policy. 1993. 22 Tonso WR. "Social Science and Sagecraft in the Debate over Gun Control." 5 Law & Policy Quarterly 3; 1983: 325:43. 23 Kates DB, Lattimer JK, and Cottrol RJ. "Public Health Literature on Firearms -- A Critique of Overt Mendacity." a paper presented to the American Society of Criminology annual meeting. New Orleans, LA. November 5, 1992. 24 Blackman PH. Criminology's Astrology: The Center for Disease Control Approach to Public Health Research on Firearms and Violence. a paper presented to the American Society of Criminology. Baltimore, MD November 7-10, 1990. 25 Blackman PH. Children and Firearms: Lies the CDC Loves. a paper presented to the American Society of Criminology. New Orleans, LA. November 4-7, 1992. 26 Henigan DA. "Arms, Anarchy and the Second Amendment." Valparaiso U. Law Review. Fall 1991; 26: 107-129. 27 US v. Verdugo-Urquidez. 494 US 259 (1990). 28 US Senate Subcommittee on the Constitution. The Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution of the Committee on the Judiciary. United States Congress. 97th. Congress. 2nd. Session. February 1982. p. 288. 29 US Constitution, Article 1, Section 8 (16). 30 US Senate Subcommittee on the Constitution. "History: Second Amendment Right to 'Keep and Bear Arms.'" The Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution of the Committee on the Judiciary. United States Congress. 97th. Congress. 2nd. Session. February 1982. 31 Hardy DT. "Historical Bases of the Right to Keep and Bear Arms." in US Senate Subcommittee on the Constitution. The Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution of the Committee on the Judiciary. United States Congress. 97th. Congress. 2nd. Session. February 1982. 32 Halbrook S. That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque, NM: U. New Mexico Press. 1984. Chap. 1 & 5. 33 Caplan D. "Weapons Control Laws: Gateways to Genocide" in Sank D & CaplanD. To Be a Victim. London: Insight. 1991. 34 Kates D. "The Second Amendment and the Ideology of Self-Protection." Constitutional Commentary. Winter 1992; 9: 87-104. 35 Kates D. "Handgun Prohibition and the Original Meaning of the Second Amendment." Michigan Law Review. 1983; 82:203. 36 Patsone v. Pennsylvania 232 US 138, 143 (1914). 37 Halbrook SP. "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment." Valparaiso U. Law Review. Fall 1991; 26: 131-207 38 Debates and Other Proceedings of the Convention of Virginia...taken in shorthand by David Robertson of Petersburg, 275 (2nd ed., Richmond) 1805. cited in Halbrook S. That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque, NM: U. New Mexico Press. 1984. 39 Miller v. US. 307 US 174 (1938). 40 Fields WS and Hardy DT. "The Militia and the Constitution: A Legal History." Military Law Review. 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