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Newsgroups: alt.society.civil-liberties,talk.politics.guns From: "Paul Hager" <hagerp@cs.indiana.edu> Subject: Florida ACLU to tackle 2nd Amendment Message-ID: <1994Jul12.212511.8545@news.cs.indiana.edu> Organization: Computer Science, Indiana University Date: Tue, 12 Jul 1994 21:25:02 -0500 Lines: 301

In an earlier thread, I mentioned that the ACLU of Florida was planning on discussing/debating the 2nd Amendment this coming September. I decided that this information is important enough that it deserves its own thread.

To briefly recap, the ACLU of Florida is apparently embarking on its own investigation of the 2nd Amendment. My impression from speaking with Robyn Blumner, the executive director, was that what will be happening in September is a discussion but that there is no formal task force set up to investigate the matter. It may be that a decision to set up a task force might emerge from this discussion. Blumner did sound as though she was disappointed in the National ACLU's refusal to address the issue.

While Blumner seemed to be in favor of investigated the meaning of the 2nd, she sounded as though she already had very definite ideas. That should come as no surprise -- I had very definite ideas about the 2nd when I started this process two years ago. Blumner, however, takes a different tack from the one I took: she feels that if the 2nd is an individual right then each citizen must, therefore, have the right to own a nuclear weapon assuming that we interpret the right expansively. In our discussion, I wasn't making much headway disabusing her of this view (as well as some others equally erroneous). Accordingly, I wrote her a letter which I have appended below.

The most significant point about what is going on in Florida is that there are now at least 3 ACLU affiliates that have made or are making some sort of attempt to take a position on the 2nd Amendment: Southern California, Indiana, and now Florida. If the Florida ACLU approaches this with an open mind, I am convinced that there is only one conclusion they can come to -- that the 2nd Amendment protects an individual right.

LET ME AGAIN URGE ANYONE WHO IS AN ACLU MEMBER IN FLORIDA TO BECOME ACTIVE!

The ball is beginning to roll and it is very important that we add to the momentum.

IF YOU ARE AN ACLU MEMBER OF ANOTHER AFFILIATE, TELL YOUR PEOPLE WHAT IS GOING ON IN INDIANA AND FLORIDA!

National ACLU dropped the ball when the Executive Committee tabled Nadine Strossen's call to form a 2nd Amendment Task Force. It is up to the affiliates to show a little spine if National can't or won't.

-------------------------blumner letter--------------------------

12-July-1994

Dear Ms. Blumner,

I wanted to send you some exact citations for the articles I mentioned in our phone conversation. The Indiana Civil Liberties Union (ICLU) 2nd Amendment Commission consulted a variety of sources. I believe that the following will be most helpful to you.

o "The Embarrassing Second Amendment", Levinson, 99 Yale Law Journal 637 (1989). Sanford Levinson is an ACLU member and con law prof. at the University of Texas in Austin.

o "Handgun Prohibition and the Original Meaning of the Second Amendment", Kates, 82 Michigan Law Review 203 (1983). Don Kates is a long-time member of the Northern California ACLU, a former civil rights lawyer, clerked for William Kunstler, and has taught criminology and law at St. Louis University. Kates' "Original Meaning" article is the seminal work in modern 2nd Amendment scholarship.

o "The Second Amendment and the Personal Right to Arms", Van Alstyne, 43 Duke Law Journal 1236 (1994). William Van Alstyne is a former member of the ACLU National Board and considered to be one of the top constitutional scholars in the country.

o "The Second Amendment: Toward an Afro-Americanist Reconsideration" Cottrol and Diamond, 80 Georgetown Law Journal 309 (1991). This is particularly good at providing background information on the African-American experience and the extent to which "gun control" has really been a manifestation of racism.

o That Every Man Be Armed: The Evolution of a Constitutional Right, Halbrook, 1984. I mentioned on the phone that this book contains a wealth of scholarship about the relationship of the 14th Amendment to the 2nd Amendment. As Halbrook documents, the actions of Reconstruction era Southern state governments and their agents to disarm Blacks was one of the important motivations behind the 14th Amendment. There is also some very important information about Congress' moving to disband Southern militias (1866) as a way of protecting the individual right to keep and bear arms of Southern Blacks.

o From the ICLU 2nd Amendment Commission is David Vandercoy's "The History of the Second Amendment", 28 Valparaiso University Law Review 1007 (1994). David submitted a draft of this paper as his contribution to the Commission's report.

o "Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment", Johnson, 24 Rutgers Law Journal 1 (1992). Johnson argues that if the 2nd didn't exist, the right to keep and bear arms would still be protected by the 9th Amendment.

o For the contra position, I'd recommend "Arms, Anarchy, and the Second Amendment" by Dennis A. Henigan, 26 Valparaiso University Law Review 107 (1991). I believe that Henigan is general counsel of Handgun Control, Inc. See also David Williams' "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment" 101 Yale Law Journal 551 (1991).

In our discussion, you rightly observed that social consequences were not the concern of the ACLU. Nonetheless, in my own paper for the Commission Report, I chose to write on the subject of guns and violence in society. A principal source for this was Gary Kleck's Point Blank (1991). Kleck is a member of your own Florida ACLU and a distinguished professor of criminology at Florida State University. Criminologists like Kleck and James Wright et al. initially started their research in this area in the 70s and early 80s with the view, then current among academics, that guns potentiate violence and positively correlate with homicide and violent crime. They and others have concluded that this view is incorrect. In fact, it is fair to say that among modern social scientists, the dominant view is that there is no evidence at all that guns positively correlate with violent crime or homicide. There is, however, a growing body of evidence that gun possession may actually have a measurable deterrent effect. Again, this is not relevant to the constitutional issue but it does bear on public policy and the degree to which the ACLU might be justified in litigating on behalf of gun owners should we adopt the individual rights position.

I did want to more fully respond to some of the points you raised in our discussion. You stated that if we took the 2nd Amendment seriously as an individual right, it would follow that all private citizens have a right to possess nuclear weapons. I think we can dispose of this possibility rather quickly. As we know, no constitutional right is absolute -- as I stated in our conversation. For example, although as civil libertarians we vigorously protect free speech, we also acknowledge that slanderous speech or fraud is not protected. Likewise, the free press is not protected when it engages in libel or fraud. The right of assembly can be regulated according to "time, place, and manner" and we generally accept that concept (although we may not always agree on specific applications). So, we do, as civil libertarians, agree on certain limits.

While I'm all for expansively interpreting the 2nd (about which more in due course), if we view it from an individual right perspective, there is the simple matter of balancing rights that must be addressed. For example, with the right of assembly, "time, place, and manner" comes into play when two groups wish to use the same venue at the same time for a demonstration. We have a case of competing rights and limited resources. In the case of nukes, we have a weapon of mass destruction that, by its mere existence, poses a significant hazard for a large collateral population of individuals, each of whom have rights to life, liberty, and property. Scholars would also note that the common law behind the individual right to keep and bear arms would distinguish between weapons that are suitable for the defense of the home and the person, from weapons whose function is "terror", which would certainly be true of nukes.

Don Kates has argued that the kind of weapons protected by the 2nd are "ordinary small arms" such as rifles, pistols, and shotguns. Don is somewhat more restrictive than I. My own view is that any weapon that is considered suitable for the police is also suitable for citizens. This would include machine guns, kevlar body armor, teargas, as well as short-barreled shotguns with pistol grips. As you are no doubt aware, American citizens can still own machine guns so long as they pay the "transfer tax" and register them with the ATF. The taxing and registration came about with the passage of the National Firearms Act of 1934. Since this Act was passed, only one registered machine gun has ever been used in a violent crime and that by an off-duty police officer. (Of course, if you consider the actions of the ATF at the Branch Davidian compound to have been criminal -- as I do -- then the MP-5 machine guns carried by the ATF agents would constitute additional violations.) Personally, I have serious reservations about all current Federal gun control laws, including the NFA, and would have no problem seeing them declared unconstitutional.

To the extent that one argues for collective defense as opposed to individual defense of one's self and one's home, one begins to fall into the "nukes are legal" argument. In fact, if the 2nd is NOT an individual right but, rather, a pure collective or states' right, then all of your arguments ineluctably follow. You are absolutely right in saying that the 2nd must mean something and as civil libertarians it is up to us to be consistent in our interpretation of the constitution. This very issue is addressed in the amicus brief Don Kates and 20 other law professors have filed in United States vs Lopez. The brief examines the states' rights interpretation: it concludes that this interpretation must mean that states have the power to maintain any credible, independent military force which, perforce, would include nukes.

I agree with you that one aspect of the 2nd relates to the matter of militias as a counter to a tyrannical government maintaining a standing army. The militia concept as a way of providing a reservoir of citizens for military action has fallen into desuetude. The National Guard is not "the militia", rather it is a "select militia" -- part of a standing army and a creature of the DoD. (I would point out that the use of the National Guard in the drug war is a serious civil liberties problem and one that might be effectively addressed through the 2nd Amendment.) The fundamental right of individuals to keep and bear arms is in no way vitiated because standing armies have replaced "citizen armies." Likewise, the right of citizens to defend themselves has not been vitiated because professional police organizations now exist. This is especially important given that police are under no legal obligation to actually defend individual citizens.

Given the racist character of the criminal justice system and the police as its agent, I would argue that there is a pressing need for civil libertarians to strongly assert that African- Americans in the inner cities have a right to self-defense and the right to keep and bear arms. I've been discussing this issue with Bob Cottrol from the standpoint of the sociology of the predominantly poor, Black, inner city. Cottrol, who is a Black liberal Democrat, has observed that gun control has historically operated to deprive poor Blacks of legal access to guns. Although Blacks are only about 1/8th of the U.S. population, they are a very large proportion of homicide and violent crime victims. It is also the case that Blacks are most likely to be the victims of abusive police tactics and police violations of their civil liberties. A progressive solution to the problems of high crime, low police protection, and police abuse, would be to resurrect something like the posse comitatus in the inner city -- I call it "armed citizen's watch." Sociologically, it would give inner city neighborhoods some control over their own destiny. At the same time, it would allow Blacks, particularly adult Black males who have been functionally emasculated by the system, to provide positive role models for inner city youth. I think this is worth exploring. Of course, a progressive solution like the above is very politically incorrect and likely to generate a firestorm of protest, no matter how good the social science that argues for it.

I'm not sure if you actually made the following argument but it does fall out of an argument you did make: given that the government has tanks, planes, nukes, etc., the only credible counter is more of the same in the hands of citizens; therefore, the 2nd is obsolete and meaningless. As we know, we can't contract constitutional rights. If a consistent interpretation of the 2nd would pose serious social problems, the solution is to amend the Constitution and give Congress power to regulate arms as it sees fit. As I've already indicated, modern scholars are in broad agreement that the 2nd protects an individual right and that individuals do not have a right to weapons of mass destruction. A gray area might exist for some weapons that can be borne by a single individual, which would include flame throwers, stinger missiles, RPGs, etc. I know that many scholars would say that these weapons can be controlled -- I'm not sure how many would say that they could be banned outright. You can read the literature and draw your own conclusions.

I must disagree with your view that people armed with small arms are not a credible deterrent to a despotic government. I used to hold the same view until I lived through recent world history. Countries with overwhelming technical superiority have gotten their clocks cleaned by indigenous forces initially having access only to small arms (for example, Vietnam, Afghanistan, and Somalia among others). War really is politics pursued by other means -- and the political realities mean that using weapons of mass destruction such as nukes are not viable options. To use such weapons to win a war against insurgents is to politically lose the war.

There is a group called Jews for the Preservation of Firearms Ownership (JPFO) which was founded by a fellow named Aaron Zelman. Zelman argues that governments that commit genocides always first disarm citizens. While I think that Zelman states his case a little too forcefully, I'm inclined to agree with him that the Holocaust supports his argument. Jews were culturally disinclined to keep firearms and the Nazis disarmed those who did: if not for these factors, a systematic genocide would have been very hard to accomplish, if it could have been accomplished at all. As I said in our phone conversation, an urban environment is a nightmare for a conventional army and all of its advantages disappear. This is what the Nazis discovered during the Warsaw ghetto uprising. Zelman's view, which I ultimately share, is that armed citizens raise the stakes for a government such that it is simply not worth calling the bet -- the political cost to government becomes too high for it to carry out its genocide.

I think this letter has gone on long enough. Please keep in touch and let me know how things are going with your affiliate's discussions on the 2nd. I hope you find the sources useful. Feel free to give me a call if you would like further information.

Sincerely,

Paul Hager -- paul hager hagerp@cs.indiana.edu

"The most formidable weapon against errors of every kind is reason." -- Thomas Paine, _The Age of Reason_