Analysis of 2nd Amendment - How Gun Nuts Mislead the Public - Part 2

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References (for article from Part 1)

1. Adams v. Williams, 407 U.S 143, 150 -51 (1972) (Douglas, J.,
dissenting).

2. Preferences throughout to "the gun lobby" and "gun-rights
advocates" apply not to individual gun owners or National Rifle
Association ("NRA") members, but solely to gun-rights litigators and
leaders of the NRA and other gun-rights organizations. Many gun owners
do not share the extreme views of the NRA. "The hard-line views of the
NRA are crafted not from the majority of gun-owners, or even its
members, but from its leadership and an activist core of 600,000
members." JOSH SUGARMANN, NRA. MONEY, FIREPOWER AND FEAR 17 (1992).
The overwhelming majority of gun owners are responsible, law-abiding
men and women. They have many different reasons for wanting to own and
use firearms:

Americans own guns for manifold reasons. Hunters . . . view their guns
as a way to escape the 'stoplight-and-concrete-jungle.' Target
shooters emphasize the calmness, the discipline, the self-control
involved in shooting. Devotees of much reviled assault weapons are
drawn to the technology and the brute impact of these weapons.
Collectors see beauty and craftmanship . . . . The millions of
Americans who keep guns for self-protection are buying talismans they
hope will ward off a seeming epidemic of evil spirits . . . . Some gun
owners see their weapons as foils against government tyranny.

Donald Baer et al., Guns, U.S. NEWS & WORLD REP., May 8, 1989, at 20,
22. This Article does not contend that these beliefs are necessarily
erroneous, that gun owners are "gun nuts," or that gun owners are evil
people for holding these views. The error is in the claim of a
constitutional right to possess an unlimited number of highly lethal,
rapid-firing, and unregulated firearms. The evil is in the insistence
on virtually unrestricted access to all manners of firearms in order
to satisfy personal desires, when that unrestricted access imposes on
the rest of society an extraordinary toll in human suffering and
health-care costs.

3. Bernard Levin, A Gun in Every Hand, THE TIMES (London), June 28,
1994, at 20. Offering its people far and away the easiest access to
firearms of all industrialized western nations, the United States also
boasts, by far, the highest murder rate per capita. The U.S. homicide
rate is 8.4 per 100,000 population ¾ twice that of France and Germany,
four times the rate in Great Britain, and seven times higher than
Japan's figure. James C. Harrington, Texas, Especially, Needs Gun
Control, TEX. LAW. , Nov. 4, 1991, at 10. Firearms were the weapon of
choice in 70% of homicides in 1993. Robert Davis & Haya El Nasser, New
Ammo for Gun Debate, USA Today , Dec. 28, 1994, at 1A. More than
500,000 Americans have died as the result of firearms injuries since
1960. JOSH SUGARMANN & KRISTEN RAND, CEASE FIRE: A COMPREHENSIVE
STRATEGY TO REDUCE FIREARMS VIOLENCE 1 (1994). In 1993 the rate of
firearms-related fatalities reached a 61-year high. Lidia Wasowicz,
Guns Deadlier than Cars, UPI, Jan. 13, 1995, available in LEXIS, News
Library, UPI File. The number of violent crimes committed with
firearms increased by 55% from 1987 through 1992. Bureau of Justice
Statistics, Violent Offenders Increasingly Likely to Be Armed, Feb.
26, 1994 (press release, on file with the Boston University Law
Review), available in BJS World-Wide Web site. The rising tide of gun
violence cuts across all regional and socioeconomic lines. Firearm
homicides are increasing in urban, rural, and even suburban areas;
with dramatic increases of 23 -28% between 1987 and 1989 in inner-city
and suburban neighborhoods, and an 8% increase in rural areas. Philip
J. Hilts, More Teenagers Being Slain by Guns, N.Y. TIMES , June 10,
1992, at A19 (citing a National Center for Health Statistics study).

4. Davis & El Nasser, supra note 3, at 1A. This figure, based on an
estimate by the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), may
be inflated. The exact number of firearms in circulation is difficult
to determine. SUGARMANN & RAND, supra note 3, at 17-18. The ATF
estimates that 7.5 million new and used guns are sold at retail each
year. Assuming gun merchants are open for business seven days per
week, that figure translates to nearly 20,000 sales a day. Id. at 18.

5. Tony Mauro, Guns: Changing Our Lives, USA TODAY , Dec. 29, 1993, at
1A, 2A. Handguns are designed to be fired with only one hand, as
opposed to long guns (or rifles), which are designed to be fired from
the shoulder. Handguns generally are less than 18 inches, while ATF
standards require that rifles have a barrel length of no less than 16
inches, and shotguns at least 18 inches. There are two types of
handguns ¾ revolvers and pistols. Revolvers hold their ammunition in a
round cylinder. Pistols, actually semiautomatic handguns, hold between
14 and 17 cartridges in a magazine, generally located in the weapon's
handle. Each time the weapon is fired, a new cartridge is loaded into
the chamber. See generally MICHAEL NEWTON, ARMED AND DANGEROUS: A
WRITER'S GUIDE TO WEAPONS (1990) (providing the technical
specifications of common firearms).

Handgun crimes shot to a record of nearly 1 million in 1992. Handguns
were used in 930,700 homicides, rapes, robberies, and assaults; an
enormous increase of 40% from the 1987-91 annual average. Handgun
murders increased by 24.5% ¾ to 13,200 ¾ from that five-year average.
Wielded in 56% of the 23,670 murders nationwide, handguns were the
overwhelming weapon of choice for killers. Debbie Howlett, Handgun
Crimes Hit Record, USA Today , May 16, 1994, at A1.

Many foreign countries have fewer handgun murders in an entire year
than the United States sees in a single day. In 1992, handguns were
used to murder:

¾ 33 people in Great Britain

¾ 36 in Sweden

¾ 97 in Switzerland

¾ 60 in Japan

¾ 13 in Australia

¾ 128 in Canada,

and 13,220 in the United States of America.

Levin, supra note 3, at 20.

6. Mary Otto, Guns Poised to Pass Autos as No. 1 Killer, ARIZ. REPUB.,
Jan. 28, 1994, at A1. The six states are California, Louisiana,
Nevada, New York, Texas, and Virginia, as well as the District of
Columbia. Id. One recent study shows that gun fatalities were on a par
with auto deaths in 1993, and almost surely pulled ahead in 1994.
Wasowicz, supra note 3. Gun-related fatalities rose 60% nationwide
from 1968 to 1991. Auto-related deaths declined by 21% during that
same time. Id.

7. Though death and injury by random gunfire has been reported in
cities of all sizes, stray bullets are a particular problem in large
cities. Random gunfire killed four New Yorkers in 1985, and 40 in
1990. Wasowicz, supra note 3. In January of 1993, random gunfire
struck 31 New York City children. The dead include youths involved in
the drug trade, kids exchanging gunfire as a means of settling
disputes, kids playing with guns, and completely innocent kids hit by
stray bullets. George James, Rifle Gunfire Wounds a 2-Year Old Girl on
a Street in the Bronx, N.Y. TIMES , Feb. 1, 1993, at B3. As we near
the end of the millennium, this stray gunfire has apparently become
accepted as just another unpleasant but inescapable part of the urban
landscape, not unlike graffiti or traffic jams. See, e.g., News at Ten
(WPIX-11 television broadcast, Nov. 7, 1993) (describing stray bullets
that struck a New York City fireman as one of the "elements" of life
"out here on the street").

8. B. Drummond Ayres, Jr., Children Frightened by Gunfire Plead with
Congress for an End to Violence, N.Y. TIMES , Feb. 4, 1994, at A12.
Firearm death rates among 15 -19 year-olds increased by 77% from 1985
to 1990, reaching a record level of 23.5 deaths per 100,000 persons.
Since 1988, gunshot wounds have killed more teens in that age group
than natural causes, trailing only traffic accidents as the leading
cause of death. SUGARMANN & RAND, supra note 3, at 1 (citing FEDERAL
BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS: CRIME IN THE UNITED
STATES 1991 , at 17 (1992)). According to the Centers for Disease
Control, the youth homicide rate nearly doubled between 1984 and 1991,
and the increase was almost entirely due to firearm deaths. Bo
Emerson, A Deadly Epidemic, ATLANTA J. & CONST. , Sept. 3, 1993, at
G1, G6.

9. Mowing Down Our Children, N.Y. TIMES , Nov. 9, 1992, at A16. The
victims of gun violence are disproportionately young black males.
According to Justice Department statistics, nearly 60% of all
firearms-related teenage homicide victims are black males, while black
males account for only about 7% of that age group in the total
population. A September 1993 Department of Health and Human Services
report found that young black men between the ages of 15 to 24 are 10
times more likely to die from homicide than whites of the same age.
From 1985 through 1990, gunshot deaths for black males of those ages
more than doubled. A Murderous Double Standard, N.Y. TIMES, Sept. 23,
1993, at A26. The firearms death rate for black males aged 15 -24 more
than tripled from 1984 to 1993, increasing from 55.9 per 100,000 to
176.8 per 100,000. Wasowicz, supra note 3. In our most violent cities,
like New York, New Orleans, Washington, D.C., Los Angeles, and
Detroit, a black male between 15 and 25 is more likely to die of
gunshot wounds than was a U.S. soldier on a tour of duty during the
Vietnam War. Diane Weathers, Stop the Guns, ESSENCE , Dec. 1993, at
67, 70. This phenomenon does not trouble the gun lobby. See infra
notes 256 -57 and accompanying text.

10. Guns trail only automobiles as risk factors for injury and death.
See supra note 8 and accompanying text. But "unlike other inherently
dangerous consumer products, firearms are virtually unregulated."
SUGARMANN & RAND, supra note 3, at 26. Unlike automobiles, neither
proof of safety proficiency nor proof of insurance is required to own
and operate a gun. Gun makers are free to manufacture and sell any
type of firearm, provided only that the weapon uses .50 caliber or
less ammunition, has a barrel of a set minimum length, and is not
fully automatic ( i.e. , the weapon must require a separate pull of
the trigger to fire each bullet). Id. at 17.

11. This position is described throughout this Article as the "narrow-
individual-right" view. This view is sometimes mischaracterized by
courts and gun-rights advocates alike as the "collective right" or
"states' right" view. As one commentator has explained:

Another commonly recurring question is whether the right guaranteed is
a 'collective' or an 'individual' one ¾ i.e. does it reside only in
the people as a whole, or in individual citizens? Aside from the
metaphysical difficulty of how something can exist in a whole without
existing in any of its parts, it is submitted that this is really a
meaningless distinction ¾ the better question being couched in terms
of the purposes for which arms may be kept and borne.

Ralph J. Rohner, The Right to Bear Arms: A Phenomenon of
Constitutional History, 16 CATH. U.L. REV. 53, 55 n.20 (1966).
Scholarly works espousing the narrow-individual-right view include:
Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365 (1993);
Lawrence D. Cress, An Armed Commmunity: The Origins and Meaning of the
Right to Bear Arms, 71 J. AM. HIST. 22 (1984); Keith A. Ehrman &
Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have
You Seen Your Militia Lately?, 15 U. DAYTON L. REV. 5 (1989); Peter B.
Feller & Karl L. Gotting, The Second Amendment: A Second Look, 61 NW.
U. L. REV. 46 (1966); Dennis A. Henigan, Arms, Anarchy and the Second
Amendment, 26 VAL. U. L. REV. 107 (1991); Rohner, supra; and Roy G.
Weatherup, Standing Armies and Armed Citizens: An Historical Analysis
of the Second Amendment, 2 HASTINGS CONST. L.Q. 961 (1975).

12. This position is described throughout this Article as the "broad-
individual-right view." Scholarly works espousing the
broad-individual-right view include: Akhil Reed Amar, The Bill of
Rights as a Constitution, 100 YALE L.J. 1131 (1991); Donald L.
Beschle, Reconsidering the Second Amendment: Constitutional Protection
for a Right to Security, 9 HAMLINE L. REV. 69 (1986); Robert J.
Cottrol & Raymond T. Diamond, The Second Amendment: Toward an
Afro-Americanist Reconsideration, 90 GEO. L.J. 309 (1991); Robert
Dowlut, The Right to Arms: Does the Constitution or the Predilection
of Judges Reign, 36 OKLA. L. REV. 65 (1983); Richard E. Gardiner, To
Preserve Liberty ¾ A Look at the Right to Keep and Bear Arms, 10 N.
KY. L. REV. 63 (1982); STEPHEN (1984); Stephen Halbrook, What the
Framers Intended: A Linguistic Analysis of the Right to "Bear Arms",
49 LAW & CONTEMP. PROBS. 151 (1986); David T. Hardy, Armed Citizens,
Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9
HARV. J.L. & PUB. POL. 559 (1986); Donald B. Kates, Jr., Handgun
Prohibition and the Original Meaning of the Second Amendment, 82 MICH.
L. REV. 204 (1983); Sanford Levinson, The Embarassing Second
Amendment, 99 YALE L.J. 637 (1989); Nelson Lund, The Second Amendment,
Political Liberty, and the Right to Self Preservation, 39 ALA. L. REV.
103 (1987); Robert E. Shalhope, Ideological Origins of the Second
Amendment, 69 J. AM. HIST. 599 (1982); William Van Alstyne, The Second
Amendment and the Personal Right to Bear Arms, 43 DUKE L.J. 1236
(1994).

13. U.S. CONST. amend. II.

14. E.g., Kates, supra note 12, at 268.

15. See, e.g., id. at 214 -18 (analyzing the historical composition
and mission of the state militias).

16. Id. at 228.

17. Id. at 228 -29 (illustrating the personal views of Thomas
Jefferson, John Adams, James Madison, and Patrick Henry).

18. See, e.g., United States v. Johnson, 497 F.2d 548, 550 (4th Cir.
1974) ("[T]he Second Amendment only confers a collective right of
keeping and bearing arms . . . . "); Kates, supra note 12, at 206
(describing one group of scholars as holding an "exclusively state's
right view," and as "those who claim that the amendment guarantees
nothing to individuals, protects only the state's right to maintain
organized military units, and thus poses no obstacle to gun control,"
and contrasting that position with the "individual right" view of
"those who claim that the amendment guarantees some sort of individual
right to arms"); see also Feller & Gotting, supra note 11, at 69
("[T]he 'right of the people' [to bear arms] refers to the collective
right of the body politic of each state . . . ." (footnote omitted)).

19. See, e.g., Ehrman & Henigan, supra note 11, at 34 -35 (describing
the historical composition of state militias).

20. See, e.g., id. at 21 (describing the continued existence of the
state militias as a compromise critical to securing passage of the
Bill of Rights); see also Perpich v. United States Dept. of Defense,
880 F.2d 11, 23 (8th Cir. 1989) ("[The Second Amendment] was intended
to reassure states- rights advocates who feared the power of a large
federal standing army would diminish the 'security of a free state.'
[It] guaranteed the perpetual existence of a viable militia as a
continued check on the military power of the federal government."
(citation omitted)), aff 'd on other grounds, 496 U.S. 334 (1990).

21. Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 430 (1985).
Instead, constitutional provisions can at least clearly exclude some
possibilities ¾ the "easy cases" ¾ albeit leaving a range of possible
interpretations from which the law must choose. Id. at 428 -31.

22. As the foremost proponent of originalism has explained:

The search is not for subjective intention. If someone found a letter
from George Washington to Martha telling her that what he meant by the
'power to lay taxes' was not what other people meant, that would not
change our reading of the Constitution the slightest. Nor would the
subjective intention of all the members of the ratifying Convention
alter anything. When lawmakers use words, the law that results is what
those words ordinarily mean.

ROBERT H. BORK, THE TEMPTING OF AMERICA 144 (1990). In fact, Bork has
explicitly rejected the gun lobby's story of the Second Amendment. See
infra note 218 and accompanying text.

23. THE FEDERALIST No. 46, at 299 (James Madison) (Clinton Rossiter
ed., 1961).

24. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS 386 (Jonathan
Elliot ed., Philadelphia, J.B. Lippincott & Co., 2d ed. 1859).

25. See examples collected in Henigan, supra note 11, at 119 -22
(detailing the gun lobby's misrepresentations of the passages quoted
in the text).

26. The militia was always a government-organized fighting force. Each
colony, and later each state, imposed some form of discipline and
training on militia members, generally requiring four to eight days of
training (or "mustering") per year, furnishing arms and other
equipment, imposing sanctions for failure to attend training or
maintain equipment, providing some militia service away from the home
community, and granting certain exemptions from militia service,
generally for teachers and ministers. The militia never encompassed
the entire citizenry. The colonial and subsequent state militias were
modeled on the English system, covering only able-bodied males between
the ages of 18 and 45, or sometimes 18 - 60 year-olds. See generally
WILLIAM H. RIKER, SOLDIERS OF THE STATES: THE ROLE OF THE NATIONAL
GUARD IN AMERICAN DEMOCRACY 11-12 (1957). A definition of militia
relatively contemporaneous to the Second Amendment's ratification
reinforces this view:

MILITIA, n. [L. from miles, a soldier . . . .] The body of soldiers in
a state enrolled for discipline, but not engaged in actual service
except in emergencies; as distinguished from regular troops, whose
sole occupation is war or military service. The militia of a country
are the able bodied men organized into companies, regiments and
brigades, with officers of all grades and required by law to attend
military exercises on certain days only, but at other times left to
pursue their usual occupations.

2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (New
York, S. Converse 1828) (emphasis added). Note that this definition is
itself quite narrow, even before attaching the "well regulated"
modifier of the Second Amendment's text.

27. See, e.g., Tony Mauro, 2d Amendment: A Right to Own Arms?, USA
TODAY , Nov. 20, 1991, at 11A (quoting gun-rights litigator Stephen
Halbrook, who claimed that "the meat of the amendment" is found in the
second clause). Of course no clause in the Constitution is without
meaning. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174
(1803).

28. A number of the proposals from colonial leaders and from state
ratifying conventions ¾ including those of Massachussetts and New
Hampshire ¾ did not connect the right to bear arms to maintenance of a
militia. 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY
681, 761 (1971). The Pennsylvania ratification convention's "minority
report" listed both self-defense and hunting as activities covered by
the right to bear arms. Id. at 665 - 73.

29. One commentator has suggested that he would "prefer to let the
framers sleep. Just as the framers, in their day, judged by their
lights, so must we, in our day, judge by ours." MICHAEL J. POERRY, THE
CONSTITUTION, THE COURTS, AND HUMAN RIGHTS 75 (1982); see also Sanford
Levinson, Law as Literature, 60 TEX. L. REV. 373, 379 (1982)
(questioning "why intentions of long-dead people from a different
social world should influence us").

30. William J. Brennan, Jr., The Constitution of the United States:
Contemporary Ratification, 27 S. TEX. L. REV. 433, 438 (1986).

31. The "well-regulated Militia" has changed drastically since 1791.
By the dawn of the 20th Century, the citizens' militias contemplated
in 1791 had yielded more than 100 years of unmitigated failure.
Frederick B. Wiener, The Militia Clause of the Constitution, 54 HARV.
L. REV. 181, 189 - 93 (1940). Beginning in 1903 with the Dick Act, and
continuing with a series of reforms over the next 30 years, the
militia was thoroughly professionalized, brought under control of the
Regular Army, and clearly distinguished from the citizens'
"unorganized militia." RIKER, supra note 26, at 80. The membership of
today's militia is statutorily defined as

all able-bodied males at least 17 years of age and . . . under 45
years of age who are, or who have made a declaration of intention to
become, citizens of the United States and . . . female citizens of the
United States who are members of the National Guard.

10 U.S.C. § 311(a) (Supp. V 1993). The statute also distinguishes
between the "organized militia" ¾ consisting of the National Guard and
Naval Militia ¾ and the "unorganized militia," consisting of the rest
of the above-defined militia. 10 U.S.C. § 311(b) (1988). While the
notion of a broad-based citizens' militia lives on in this
"unorganized militia," it is hardly one of universal service. The
statute's exclusions from the militia undercut any claim of a right to
bear arms for most women, and for all men under 17, over 45, or not
physically fit to serve. In any case, today's "unorganized militia"
does not correspond with the Second Amendment's notion of a
"well-regulated" militia, because the unorganized militia is not
trained, disciplined, drilled, or otherwise "regulated" in any way. At
the same time, today's organized militia ¾ the National Guard ¾ is an
even more thoroughly regulated state fighting force than the
government-organized militia of 1791. Nor is it any longer necessary
for members of the National Guard to keep their weapons at home. The
federal government provides all firearms. Ehrman & Henigan, supra note
11, at 38.

32. The slow-firing, low-ammunition-capacity firearms of the late 18th
and early 19th centuries were necessary tools for a citizenry living
with no organized police forces, facing the constant threat of attacks
by Native American guerrilla warriors, and acquiring most of its meat
through hunting. Most of the rapid-firing high-ammunition-capacity
firearms of the late 20th century bear little mechanical or practical
relation to their earlier counterparts.

33. Erwin Griswold, Phantom Second Amendment 'Rights', WASH. POST,
Nov. 4, 1990, at C7.

34. 307 U.S. 174 (1939).

35. Id. at 178.

36. Id.

37. Id.

38. Id.

39. Maryland v. United States, 381 U.S. 41, 46 (1965) ("The National
Guard is the modern Militia reserved to the States by Art. I, § 8, c.
15, 16 of the Constitution." (footnotes omitted)); see Perpich v.
Department of Defense, 496 U.S. 334, 355 (1990) ("Notwithstanding the
brief periods of federal service, the members of the state Guard unit
continue to satisfy [the] description of a militia."). The Perpich
Court rejected the NRA's contrary suggestion, in its brief amicus
curiae, that the National Guard should not be considered the
contemporary "well regulated Militia." Brief of Amicus Curiae Firearms
Civil Rights Legal Defense Fund at 2-13, Perpich (No. 89 -542); see
also Henigan, supra note 11, at 109 n.10 (describing the Firearms
Civil Rights Legal Defense Fund as an arm of the NRA).

40. See, e.g., Kates, supra note 12, at 248 -50; Levinson, supra note
12, at 654 -55.

41. See, e.g., Cases v. United States, 131 F.2d 916, 922-23 (1st Cir.
1942) ("[W]e do not feel that the Supreme Court in [ Miller] was
attempting to formulate a general rule applicable to all cases. The
rule which it laid down was adequate to dispose of the case before it
and that we think was as far as the Supreme Court intended to go."),
cert. denied, 319 U.S. 770 (1943); Feller & Gotting, supra note 11, at
65 (stating that the Miller Court "preferred to dispose of the case on
what was essentially a matter of proof ").

Gun-rights advocates also insist that Miller endorsed a citizen-wide
definition of the well-regulated militia. See, e.g., Kates, supra note
12, at 249 n.192. The Miller Court described the militia of 1791 not
as a collection of all citizens, but of "all males physically capable
of acting in concert for the common defense." 307 U.S. at 179. The
Court also emphasized that membership in the militia involved training
and discipline, and was more than the unorganized mass of citizens
bearing arms for their own purposes. Id. at 178 -79 (stating that the
"militia" of 1791 described a military force that "the States were
expected to maintain and train" and a "body of citizens enrolled for
military discipline" (emphases added)).

42. 116 U.S. 252, 269 (1886).

43. Illinois Military Code, 1879 Ill. Laws 192, 203-04, art. XI, §§ 5
- 6 (current version at ILL. ANN. STAT. ch. 20, para. 1805, § 24
(Smith-Hurd 1993)).

44. Presser, 116 U.S. at 254 -55.

45. Id. The Supreme Court rejected the defendant's Second Amendment
argument on non-incorporation grounds. Id. at 265 (citing United
States v. Cruikshank, 92 U.S. 542, 552 (1876)). The Court also
rebuffed Presser's argument under the Fourteenth Amendment's
Privileges and Immunities Clause, that citizens have a right to be
armed in order to participate in private military groups. Id. at 266 -
68. The Court framed Presser's claim as whether a federal right to be
armed in order to participate in military activities applies to any
citizen not enrolled in the "organized volunteer militia." Id. at 266.
Given the Court's view of the militia as a necessary tool for the
federal government to "maintain[ ] public security," the answer was a
resounding no. Id. at 267- 68.

46. U.S. CONST. art. I, § 8, cl. 15 ("The Congress shall have Power .
. . [t]o provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions . . . ."). The
militia's constitutional role in suppressing domestic insurrection is
also reflected in legislative enactments. See 10 U.S.C. §§ 331-333
(giving the President power to call state militias into federal
service to put down insurrections against state or federal
governments, to enforce federal or state laws, and to end obstructions
of justice). Presidents Eisenhower and Kennedy relied on these
provisions when, faced with obstructions of justice, domestic
violence, and unlawful conspiracies opposed to public school
desegregation in the South, they called out the Arkansas, Mississippi,
and Alabama National Guards. See Exec. Order No. 10,730, 22 Fed. Reg.
7628 (1957) (Arkansas National Guard); Exec. Order No. 11,053, 27 Fed.
Reg. 9681 (1962) (Mississippi National Guard); Exec. Order No. 11,118,
28 Fed. Reg. 9863 (1963) (Alabama National Guard). Interestingly, on
these occasions federalization at least initially operated to prevent
the National Guard units from engaging in insurrections. See JOHN K.
MAHON, HISTORY OF THE MILITIA AND NATIONAL GUARD 225 -26 (1983)
(describing the 1957-58 desegregation of the Little Rock, Arkansas
schools); id. at 237-38 (describing Guard involvement in the
desegregation of state universities in Mississippi and Alabama).
Although libertarian and civic republican strains of the
insurrectionist argument see a need for the people, as individuals, to
rise up against tyranny, individuals need not be the only locus of
power to struggle against a tyrannical government. Assuming that there
is some value in having the Constitution protect the ability to foment
insurrections, the history of the National Guard and the civil rights
movement suggests that today, a right to bear arms limited to militia
members may be enough to create any "desirable" insurrections, by
states themselves, against the "tyrannical" federal government. In
effect, one might seek to balance the power of various governments,
preventing any one of them from slipping into despotism.

47. Henigan, supra note 11, at 115.

48. Sadly, attempts to justify such private armies on Second Amendment
grounds did not end with the passing of the last century. In
Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F.
Supp. 198 (S.D. Tex. 1982), the United States District Court for the
Southern District of Texas faced a modern revival of this argument.
The Ku Klux Klan had engaged in systematic and violent harassment of
Vietnamese fishermen along the Gulf Coast of Texas. Id. at 203 - 07.
Klan members viewed the Vietnamese as unfairly competing with white
fishermen. Id. at 212. The Texas Emergency Reserve ("TER"), a military
arm of the Texas Klan, operated training camps in the State of Texas
and from those camps trained operatives to attack and intimidate the
Vietnamese fishermen. Id. at 203 - 07. In response to the plaintiffs'
request that the court enjoin the activities of the TER, the Klan
claimed that the Second Amendment barred not only the proposed
injunction against its private military training, but also a Texas
statute providing that "no body of men, other than the regularly
organized state military forces of this State and the troops of the
United States, shall associate themselves together as a military
company or organization." Id. at 211 (quoting TEX. REV. STAT. ANN.
art. 5780, § 6 (Vernon 1962) (current version at TEX. GOV. CODE ANN. §
431.010(a) (West 1990))). The court squarely rejected the Klan's
claim, holding that "the Second Amendment does not imply any general
constitutional right for individuals to bear arms and form private
armies." Id. at 210 (finding that Texas may constitutionally prohibit
private armies because the Second Amendment prohibits only such
interference with the right to bear arms as would hinder the
preservation of the militia, and because Texas "is the 'sole judge' of
the steps to be taken to maintain its militia' "). The court further
buttressed its approval of the Texas statute by ruling that the Second
Amendment only protects the right to bear arms in the context of
service in a government militia. Id. at 216 ("[D]efendants' military
operations obviously have absolutely no relationship whatsoever to any
state or federal militia.").

For other modern incarnations of the insurrectionist argument, and
judicial rejection thereof, see United States v. Oakes, 564 F.2d 384,
387- 88 (10th Cir. 1977) (rejecting a claim that membership in a posse
comitatus qualified a person for Second Amendment protection), cert.
denied, 435 U.S. 926 (1978), and In re Cassidy, 51 N.Y.S.2d 202, 205
(App. Div. 1944) (finding that a litigant's "jubilation that there is
the Second Amendment" was misplaced, in the course of holding that
"there can be no justification for the organization of a private armed
militia" to which Cassidy belonged). Along with Presser, these cases
may reinforce Weberian fears regarding exclusive state control of the
means of violence. See, e.g., Levinson, supra note 12, at 650 (citing
MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 156 (A.M.
Henderson & Talcott Parsons trans., 1947)). But adoption of the
anti-insurrection view expressed by these courts reflects rational
fear of the converse danger of legal approval for the stockpiling of
private arsenals and the armament of private military groups. See
David C. Williams, Civic Republicanism and the Citizen Militia: The
Terrifying Second Amendment, 101 YALE L.J. 551, 614 -15 (1991).

Finally, as the facts of Vietnamese Fishermen particularly
demonstrate, the insurrectionist view has troubling real-life
implications in a highly-armed, hate-filled society. Others besides
the Klan take the insurrectionist view: White power leaders like Aryan
Nation's Louis R. Beam, Jr. invoke the motto, "Where ballots fail,
bullets will prevail"; the Order's Bruce Pierce told the FBI that his
group "hoped for a natural disaster, economic failure of the U.S.
government, a major race war, or anything that would disrupt society
in America so that he would be able to gather up his army of men and
strike against the system, that being the U.S. government"; and
survivalist groups like the American Pistol and Rifle Association view
desegregation busing as "federal kidnapping . . . perhaps the most
obvious proof today that the American people suffer under the heel of
totalitarian government" and threaten to "remove[ ] federal officials
'by whatever means necessary.' " JAMES RIDGEWAY, BLOOD IN THE FACE 87,
91 (1990).

49. United States v. Cruikshank, 92 U.S. 542, 553 (1875); see also
Presser, 116 U.S. at 265 ("[T]he Amendment is a limitation only upon
the powers of Congress and the National government, and not upon that
of the States.").

50. See, e.g., Stephen P. Halbrook, The Fourteenth Amendment and the
Right to Bear and Keep Arms: The Intent of the Framers, in
SUBCOMMITTEE ON THE CONSTITUTION OF THE SENATE COMM. ON THE JUDICIARY,
97th CONG., 2d SESS., THE RIGHT TO KEEP AND BEAR ARMS 68 (Comm. Print
1982) [hereinafter THE RIGHT TO KEEP AND BEAR ARMS].

51. E.g., Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.
1982), cert. denied, 464 U.S. 863 (1983).

52. 965 F.2d 723, 731 (9th Cir. 1992) (upholding California's
assault-weapon ban and rejecting the NRA's Second Amendment challenge
on grounds that the Second Amendment is not applied to the States
through the Fourteenth Amendment).

53. 445 U.S. 55 (1980).

54. Id. at 66.

55. Id. at 65 n.8 (citing United States v. Miller, 307 U.S. 174, 178
(1939), to support the proposition that no constitutionally protected
liberties are violated by Title VII of the Omnibus Crime Control and
Safe Streets Act of 1968, 18 U.S.C. § 1201(a)(1)(1988)).

56. Gun-rights advocates have argued that the Court adopted a broad
view of the Second Amendment in United States v. Verdugo-Urquidez, 494
U.S. 259, 265 (1990). See, e.g., Thomas M. Moncure, The Second
Amendment Ain't About Hunting, 1991 HOW. L.J. 589, 595. As proof that
the right to bear arms extends to all citizens, not just members of
the state militia, the gun lobby points to a line in Verdugo-Urquidez:
" '[T]he people' protected by the Fourth Amendment, and by the First
and Second Amendments . . . refers to a class of persons who are part
of a national community . . . . " E.g., Petition for Certiorari, at 26
(quoting Verdugo-Urquidez), Farmer v. Higgins, 498 U.S. 104 (1991)
(No. 90 - 600) (denying certiorari). Verdugo-Urquidez was a case about
the Fourth, not the Second, Amendment, specifically addressing the
issue of whether foreign nationals living in foreign countries should
receive Fourth Amendment protections. Id. Furthermore, the Court's
comment about "the people" does not even begin to address the central
question of the Second Amendment's scope: whether the right to bear
arms applies to "the people" for all purposes, or only in connection
with militia service. See Brief for Amici Curiae The Center to Prevent
Handgun Violence Legal Action Project et al. at 11 n.15, Farmer (No.
90 - 600) (arguing that Verdugo-Urquidez does not alter Miller's
interpretation of the Second Amendment).

57. See United States v. Hale, 978 F.2d 1016, 1018 -20 (8th Cir. 1992)
(finding that absent a showing that possession of a weapon has a
reasonable relationship to the preservation of a well-regulated
militia, the Second Amendment does not guarantee the right to possess
a weapon), cert. denied, 113 S. Ct. 1614 (1993); Farmer v. Higgins,
907 F.2d 1041, 1045 (11th Cir. 1990) (dismissing as without merit
appellee's claims that the Second Amendment provides a right to
possess machineguns), cert. denied, 498 U.S. 104 (1991); United States
v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (deciding that the right to
posses a gun is not a fundamental right); Quilici v. Village of Morton
Grove, 695 F.2d 261, 270 (7th Cir. 1982) (finding that a right to
possess handguns is not guaranteed by the Second Amendment), cert.
denied, 464 U.S. 863 (1983); United States v. Oakes, 564 F.2d 384, 387
(10th Cir. 1977) (finding that the Second Amendment does not guarantee
the right to bear arms, though appellant was technically a member of
the state militia and of a militia-type organization registered with
the state), cert. denied, 435 U.S. 926 (1978); Marchese v. California,
545 F.2d 645, 646 (9th Cir. 1976) (finding that the "compelling state
interest" standard does not apply to the right to bear arms); United
States v. Warin, 530 F.2d 103, 106 (6th Cir.) (finding that possession
of a weapon must bear a reasonable relation to the preservation of a
well-regulated militia), cert. denied, 426 U.S. 948 (1976); United
States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (same); Cases v.
United States, 131 F.2d 916, 921-22 (1st Cir. 1942) (finding that the
Second Amendment prevents only the national government from infringing
on the right to bear arms, though even the bar on federal action is
not absolute), cert. denied, 319 U.S. 770 (1943); United States v.
Tot, 131 F.2d 261, 266 (3d Cir. 1942) (finding that possession of a
weapon must bear a reasonable relation to the preservation of a
well-regulated militia), rev'd on other grounds, 319 U.S. 463 (1943).
Dozens of other federal and state courts have reached the same
conclusion. See Henigan, supra note 11, at 108 n.9 (collecting cases).

58. See United States v. Ransom, 515 F.2d 885, 891 (5th Cir. 1975)
(applying only rational basis scrutiny to the defendants'
equal-protection challenge of their convictions for possession of
unregistered machineguns); see also United States v. Johnson, 441 F.2d
1134, 1136 (5th Cir. 1971) (relying on Miller to uphold a defendant's
conviction for possession of a sawed-off shotgun). Neither the
District of Columbia Circuit, nor other courts at this level of the
federal judicial system (the Federal Circuit and the Temporary
Emergency Court of Appeals), have decided Second Amendment issues.

59. See, e.g., Farmer, 907 F.2d at 1045 (dismissing as without merit a
Second Amendment challenge to a ban on private ownership of
machineguns); Warin, 530 F.2d at 106 ("[T]here is absolutely no
evidence that a submachine gun in the hands of an individual
'sedentary militia' member would have any, much less a 'reasonable
relationship to the preservation or efficiency of a well regulated
militia.' "); Cases, 131 F.2d at 922-23 (rejecting the contention that
Miller's holding prevents Congress from regulating private possession
and use of "distinctly military arms, such as machine guns, trench
mortars, anti-tank or anti-aircraft guns," and finding it
"inconceivable that a private person could have any legitimate reason
for having such a weapon"); Sandidge v. United States, 520 A.2d 1057,
1058 (D.C.) ("We reject appellant's contention that Miller stands for
the proposition that Congress may regulate only those classes of
weapons which have no relationship to the militia."), cert. denied,
484 U.S. 868 (1987).

60. Oakes, 564 F.2d at 387 (rejecting the argument that a prosecution
for possession of a machinegun violated the Second Amendment right to
bear arms). The court also rejected the defendant's claim that the
Second Amendment applied to him even though, as a male between the
ages of 21 and 45, he was a member of the Kansas state militia. Id. at
386 - 87.

61. Quilici, 695 F.2d at 270 (citing Miller).

62. 18 U.S.C. § 922(o) (1988 & Supp. V 1993); Farmer, 907 F.2d at
1043; see also Ethan Bronner, Curbs on Machine Guns Kept by Court,
BOSTON GLOBE, Jan. 15, 1991, at 11.

63. Petition for Certiorari at 27, Farmer v. Higgins, 498 U.S. 104
(No. 90 - 600).

64. 978 F.2d 1016 (8th Cir. 1992), cert. denied, 113 S. Ct. 1614
(1993).

65. Id. at 1020.

66. Id. (rejecting as inapplicable the appellant's argument that
United States v. Verdugo-Urquidez demonstrated that Second Amendment
protections apply to individuals).

67. United States v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988).

68. See Ehrman & Henigan, supra note 11, at 46 nn.287- 92 (collecting
cases).

69. Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir.
1982) (upholding a village ordinance banning the possession of any
handgun within village boundaries), cert. denied, 464 U.S. 863 (1983).

70. Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir. 1990)
(construing the Firearms Owners' Protection Act as prohibiting the
possession of machineguns not lawfully possessed prior to May 16,
1986, and rejecting arguments that the Act violated the Second
Amendment), cert. denied, 498 U.S. 104 (1991). Some gun-rights
advocates claim that the case law does not question a fundamental
right for all private citizens to bear arms because the courts have
only upheld firearms restrictions on children, the insane, and felons.
See, e.g., Donald B. Kates, Jr., Why Gun Ownership Is a Right, L.A.
TIMES , Nov. 29, 1993, at B7. This disingenuous argument fails to take
account of the handgun and machinegun bans upheld in Quilici and
Farmer, respectively.

71. See United States v. Three Winchester 30 -30 Caliber Lever Action
Carbines, 363 F. Supp. 322, 323 (E.D. Wis. 1973) (finding that the
forfeiture of firearms used for hunting does not violate the Second
Amendment); State v. Barnhardt, 680 P.2d 7, 9 (Or. Ct. App. 1984)
(finding that a rule prohibiting the use of rifles during elk hunting
season, unless a hunter had an official elk rifle tag, did not violate
the Second Amendment because the Constitution does not forbid "the
regulation of the use of a weapon"); State v. Walsh, 970 P.2d 974
(Wash. 1994) (rejecting as without merit arguments that a
"spotlighting" statute, which prohibits the hunting of big game with
spotlights or artificial light, was unconstitutionally overbroad
because it violates the Second Amendment).

72. See, e.g., Fields v. Harris, 675 F.2d 219, 220 (8th Cir.) (finding
that the Second Amendment confers no substantive right of self-
defense), cert. denied, 459 U.S. 869 (1982); People v. Evans, 115 Cal.
Rptr. 304, 308 (Cal. Ct. App. 1974) (finding that a state statute
prohibiting ex-felons from possessing firearms did not deprive a
defendant of the constitutional right of self-defense); Ex Parte
Williams, 786 S.W.2d 781, 782 (Tex. Ct. App. 1990) (finding that the
constitutional right to bear arms for self-defense is not absolute);
Masters v. State, 653 S.W.2d 944, 945 (Tex. Ct. App. 1983) (holding
that the "Second Amendment . . . does not contemplate . . . granting
appellant the right to carry 'swords' upon his person . . . for
apparent self-defense purposes"), aff 'd, 685 S.W.2d 654 (Tex. Crim.
App.) (finding that the Second Amendment grants no right of
self-defense and permits state restrictions on the ability to carry
weapons on one's person), cert. denied, 474 U.S. 853 (1985); State v.
Vlacil, 645 P.2d 677, 681 (Utah 1982) (finding that a statute
prohibiting weapons possession by all noncitizens does not violate the
Second Amendment, which provides only a collective right to bear
arms); cf. Justice v. Elrod, 832 F.2d 1048, 1051 (7th Cir. 1987)
(rejecting a "vague and legally ungrounded invocation of a supposed
pre-constitutional right to bear arms ¾ a Hobbesian right of
self-defense in the state of nature," along with a Second Amendment
claim); Quilici v. Village of Morton Grove, 532 F. Supp. 1169, 1183
(N.D. Ill. 1981) (rejecting an asserted Ninth Amendment right of armed
self-defense, based on sources frequently asserted for similar Second
Amendment claims), aff 'd, 695 F.2d 261 (7th Cir. 1982), cert. denied,
464 U.S. 863 (1983).

73. United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert.
denied, 435 U.S. 926 (1978); Vietnamese Fishermen's Ass'n v. Knights
of the Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex. 1982); In re Cassidy,
51 N.Y.S.2d 202, 205 (App. Div. 1944); Vlacil, 645 P.2d at 681.

74. United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied
, 113 S. Ct. 1614 (1993); Farmer, 907 F.2d at 1045 (dismissing as
without warrant the contention that the Second Amendment permits
manufacture of machineguns); Quilici v. Village of Morton Grove, 695
F.2d 261, 270 (7th Cir. 1982) (ruling that a village gun ordinance is
not barred by the Second Amendment because the Amendment does not
apply to the states), cert. denied, 464 U.S. 863 (1983); Oakes, 564
F.2d at 387 (ruling that though appellant was technically a member of
the state militia and was a member of a registered militia-type
organization, the Second Amendment did not grant him the right to bear
an unregistered firearm); United States v. Warin, 530 F.2d 103, 106
(6th Cir.) (finding that the Second Amendment did not protect
appellant from prosecution under the National Firearms Act when
possession of a submachinegun had no reasonable relationship to a
well-regulated militia), cert. denied, 426 U.S. 948 (1976); United
States v. Tomlin, 454 F.2d 176, 176 (9th Cir.) (dismissing the
contention that the Second Amendment protects against prosecution
under the National Firearms Act), cert. denied, 406 U.S. 924 (1972);
Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) (finding
that a conviction did not violate Second Amendment rights when
appellant, by possessing a .38 caliber revolver, did not intend to
contribute to the efficiency of the well-regulated militia), cert.
denied, 319 U.S. 770 (1943); United States v. Kozerski, 518 F. Supp.
1082, 1090 (D.N.H. 1981) (ruling that a defendant's status as a rural
police officer did not confer a Second Amendment right to bear arms),
aff 'd mem., 740 F.2d 952 (1st Cir.), cert. denied, 469 U.S. 842
(1984); United States v. Sandidge, 520 A.2d 1057, 1059 (D.C.) (finding
that possession of a handgun bears no "relationship to the District of
Columbia's desire and ability to preserve a well regulated militia"),
cert. denied, 484 U.S. 868 (1987).

75. Burton v. Sills, 248 A.2d 521, 528 (N.J. 1968) (concluding that a
"regulation . . . which does not impair the maintenance of the States'
active, organized militia is not at all in violation of . . . the
second amendment" (citations omitted)), appeal dismissed per curiam,
394 U.S. 812 (1969).

76. See, e.g., United States v. Carver, 260 U.S. 482, 490 (1923) (
"The denial of a writ of certiorari imports no expression of opinion
upon the merits of the case . . . .").

77. Peter Linzer, The Meaning of Certiorari Denials, 79 COLUM. L. REV.
1227, 1229 (1979) (arguing that a denial of certiorari indicates that
most of the Justices were not strongly dissatisfied with the opinion
below); see also id. at 1278 (quoting Justice Harlan's possibly
serious, possibly hyperbolic, comment to Learned Hand that "when you
read in Monday morning's New York Times 'Certiorari denied' to one of
your cases, then despite the usual teachings, what the notation really
means is 'judgment affirmed' ").

78. Id. at 1277-78 (stating that many courts have ignored the Supreme
Court's dicta regarding the insignificance of certiorari denials).

79. Id. at 1278.

80. Id.

81. SUP. CT. R. 10.1(c) (formerly SUP. CT. R. 17(1)(c)).

82. Id.

83. Sandidge v. United States, 520 A.2d 1057, 1058 -59 (D.C.), cert.
denied, 484 U.S. 868 (1987).

84. Id. at 1058.

85. Cases v. United States, 131 F.2d 916, 921-22 (1st Cir. 1942)
(finding that the Second Amendment prevents only the national
government from infringing upon the right to bear arms), cert. denied,
319 U.S. 770 (1943); United States v. Warin, 530 F.2d 103, 105 - 06
(6th Cir.) (holding that the possession of a weapon must have some
present relationship to the militia to be protected), cert. denied,
426 U.S. 948 (1976); Quilici v. Village of Morton Grove, 695 F.2d 261,
270 (7th Cir. 1982) (finding that the Second Amendment does not apply
to the states), cert. denied, 464 U.S. 863 (1983); United States v.
Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 113 S. Ct. 1614
(1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977)
(finding that technical membership in the state militia and
paramilitary group is not sufficiently related to the well-regulated
militia to receive Second Amendment protection), cert. denied, 435
U.S. 926 (1978); Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir.
1990) (dismissing as without merit the contention that the Second
Amendment protects the manufacture of machineguns), cert. denied, 498
U.S. 104 (1991); see also United States v. Kozerski, 518 F. Supp.
1082, 1090 (D.N.H. 1981) (ruling that status as a rural police officer
did not grant the defendant a Second Amendment right to bear arms),
aff 'd mem., 740 U.S. 952 (1st Cir.), cert. denied, 469 U.S. 842
(1984).

86. Linzer, supra note 77, at 1285.

87. 248 A.2d 521, 528 (N.J. 1968) (ruling that state licensing
requirements that did not impair the preservation of a well-regulated
militia did not violate the Second Amendment), appeal dismissed per
curiam, 394 U.S. 812 (1969).

88. Id.

89. See, e.g., Edelman v. Jordan, 415 U.S. 651, 670 -71 (1974) (noting
a limited precedential effect of summary dispositions, but overturning
several such decisions on the way to finding a lack of state consent
to suit in federal court). See generally ROBERT L. STERN ET AL.,
SUPREME COURT PRACTICE § 4.28, at 215 -16 (7th ed. 1993) (discussing
the precedential effect of Supreme Court summary dispositions on the
Court itself).

90. E.g., Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983)
(summarizing cases and describing the precedential effect of summary
disposition in the lower state and federal courts). See generally
STERN ET AL. , supra note 89, § 4.29, at 219 (same).

91. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).

92. See Anderson, 460 U.S. at 784 n.5.

93. Statement as to Jurisdiction at 3-4, Burton v. Sills, 394 U.S. 812
(1969) (No. 69 -1158) (per curiam). At the time of Burton, the Supreme
Court heard cases not only on certiorari, but also on appeal. 28
U.S.C. § 1257 (1964) (amended 1988). In such instances, the party
seeking review filed a jurisdictional statement instead of a petition
for a writ of certiorari. S. Ct. R. 13.2 (1968).

94. Burton v. Sills, 248 A.2d 521, 528 -29 (1968), appeal dismissed
per curiam, 394 U.S. 812 (1969).

95. Id. at 526 -28.

96. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (incorporating
the Sixth Amendment right to jury trial in serious criminal cases into
the Fourteeth Amendment's Due Process Clause).

97. Linzer, supra note 77, at 1249 (citations omitted).

98. See, e.g., Coleman v. Thompson, 501 U.S. 722, 745 -51 (1991)
(concluding that recent habeas jurisprudence had effectively overruled
Fay v. Noia, 372 U.S. 391 (1963)).

99. For reaction to the Rehnquist Court's rewrite of the civil rights
laws, see the legislative history of the Civil Rights Act of 1991.
See, e.g., H.R. Rep. No. 40, 102d Cong., 1st Sess. 23-26 (1991)
(discussing "[t]he need to overturn" Wards Cove Packing Co. v.
Antonio, 490 U.S. 642, 655 (1989), a case characterized as drastically
cutting back on 18 years of settled Court precedent), reprinted in
1991 U.S.C.C.A.N. 549, 561- 64.

100. The Rehnquist Court refused to grant certiorari in Farmer v.
Higgins, 498 U.S 104 (1991).

101. See John E. Yang, N.R.A. Shifts its Challenge to California Gun
Law, WASH. POST, Nov. 18, 1992, at A4 (reporting that the NRA declined
to apply for certiorari after Fresno Rifle & Pistol Club, Inc. v. Van
de Kamp, 965 F.2d 723, 731 (9th Cir. 1992), because the Supreme Court
was unlikely to grant the petition).

102. The NRA-supported challenges to the Brady Law have been made on
Tenth, not Second, Amendment grounds ¾ that the law unconstitutionally
forces local law-enforcement officials to act on Congress's order.
See, e.g., George DeLama, Gun Control Drama Gets New Twist,
TIMES-PICAYUNE (New Orleans), Mar. 20, 1994, at A12; see also R.
William Ide, III, Remarks to the National Press Club's Newsmaker
Breakfast, Apr. 15, 1994, at 7 (on file with the Boston University Law
Review) ("The ABA challenges [the NRA] to bring suit against the Brady
Law on Second Amendment grounds. They should either put up or admit
there is no Second Amendment guarantee.").

103. Levinson, supra note 12, at 637.

104. Williams, supra note 48, at 551.

105. Feller & Gotting, supra note 11, at 69 -70 ("The ideal of the
supremacy of state militia over federal military power is a fading
echo. The second amendment as the embodiment of that ideal is
therefore obsolete.").

106. Id. at 69.

107. Gun-rights advocates argue that any focus on firearms regulation
errs by focusing on the weapon rather than on the person wielding it.
See, e.g., D. James Sceats, Jr., Violence in America: Time to Bite the
Bullet Back, 268 JAMA 3070, 3046 (1992) ("The gun is not to blame; the
person who holds it is.").

The logic underlying this NRA bumper-sticker philosophy is valid, as
far as it goes. Guns do not "get off the shelf, get out of the box and
hurt somebody" without human intervention, as then-NRA chief lobbyist
James Jay Baker insightfully noted. Guy Gugliotta & Pierre Thomas,
Bearing Arms vs. Despairing of Arms: The Battle for Control, WASH.
POST, Feb. 16, 1992, at B1, B6. This simplistic argument ignores,
however, the many studies indicating that although guns do not kill by
themselves, they make killing easier and increase the likelihood of
death or injury.

As one doctor has explained:

We often hear that "Guns don't kill people, people kill people." . . .
Sometimes, no doubt, a person who is intent upon killing someone seeks
out a lethal weapon. Far more often, gun-inflicted wounds ensue from
impromptu arguments and fights . . . . These deaths would largely be
replaced by non-fatal injuries if a gun were not handy. Thus a far
more appropriate generality would be that "People without guns injure
people, guns kill them."

Susan P. Baker, Without Guns, Do People Kill People?, 75 AM. J. PUB.
HEALTH 587, 588 (1985). To put it more plainly, as a police officer
remarked to a journalist: "[W]e've yet to see a drive-by stabbing."
Handguns Kill More than They Protect, CHI. TRIB. , Sept. 14, 1992, at
16. See generally Katherine K. Christoffel, Violent Death and Injury
in U.S. Children and Adolescents, 144 AM. J. DISEASES CHILD. 697, 702
(1990) (citing studies showing that handguns are more efficiently
lethal than knives, other weapons, or fists); Linda E. Saltzman et
al., Weapon Involvement and Injury Outcomes in Family and Intimate
Assaults, 267 JAMA 3043 (1992) (finding that firearm assaults on
family and friends are 12 times likelier to result in death than
nonfirearm assaults; that death is 3 times likelier than in assaults
with knives or other cutting instruments, and 23.4 times more likely
to result in death than with other weapons or bodily force alone);
Robert Davis, Gun Foes Sense a Time to Seize the Moment, USA TODAY ,
Oct. 19, 1993, at 9A (stating that 1992 homicide statistics reveal
that guns killed more that 68% of the 22,540 total homicide victims).

108. Gun-rights advocates argue that firearm regulation errs by
focusing on the many law-abiding citizens who do not use guns for
illegal purposes and would obey strict gun control laws, rather than
on the criminal few, who put their guns to illicit use and would
simply ignore a gun ban. This argument has been a staple of NRA
lobbying for years. See, e.g., J. Warren Cassidy, The Case for
Firearms, TIME , Jan. 29, 1990, at 22, 22 ("Antigun laws ¾ the waiting
periods, background checks, handgun bans, etc. ¾ only harass those who
obey them. Why should an honest citizen be deprived of a firearm for
sport or self-defense when, for a gangster, obtaining a gun is just a
matter of showing up on the right street corner with enough money?").
The "only outlaws" argument exaggerates and distorts the scope of the
black market, ignoring the fact that many criminals do buy their
weapons from legitimate gun dealers. See, e.g., Tom Diemer, Aiming for
the Truth in Firefight over Gun Control, PLAIN DEALER (Cleveland),
Oct. 10, 1993, at 1A (recalling that a 1991 Justice Department survey
of 2100 state prison inmates found that 27% of those who admitted
owning a handgun said they had purchased it from a retail outlet). The
argument also fails to consider that most illegal weapons were
originally purchased legally, then stolen or sold into the "black
market." See, e.g., Michael R. Rand, Guns and Crime, BUREAU OF JUSTICE
STATISTICS, U.S. DEPT. OF JUSTICE, CRIME DATA BRIEF, Apr. 1994 (No.
NCJ-147003, on file with the Boston University Law Review) (reporting
that firearms thefts averaged about 341,000 annually from 1987- 92,
but arguing that the actual numbers were undoubtedly higher because
this annual average includes only reported thefts and because the
figures do not count the total number of firearms stolen in each
reported theft); see also Andrew J. McClurg, The Rhetoric of Gun
Control , 42 AM. U. L. REV. 53, 106 & n.237 (1992) (stating that New
York City law-enforcement agencies report that as many as 90% of
firearms used in crimes within their jurisdiction were originally
acquired out of state).

109. See, e.g., Cassidy, supra note 108, at 22 ("Violent crime
continues to rise in cities like New York and Washington even after
severe firearm-control statutes were rushed into place.") Most of
these 20,000 statutes, however, do not restrict sales or possession of
firearms. They merely set zoning regulations for gun dealers or govern
transportation and discharge of firearms within local boundaries.
SUGARMANN & RAND, supra note 3, at 9.

Empirical studies have reached conflicting conclusions as to the
efficacy of current gun laws. Compare Philip J. Cook, The Effect of
Gun Availability on Violent Crime Patterns (stating that gun
availability increases both the seriousness of and rate of violent
crime), in THE GUN CONTROL DEBATE 130 (Lee Nisbet ed., 1990) with Gary
Kleck, The Relationship Between Gun Ownership Levels and Rates of
Violence in the United States (rejecting any connection between levels
of gun ownership and gun violence), in THE GUN CONTROL DEBATE, supra,
at 123. Given the ease of evading all existing local or state firearm
restrictions by purchasing weapons illegally in the black market or
legally in a more permissive jurisdiction, the ambiguous results of
such studies are no surprise. That uneven laws yield uncertain results
is hardly an argument against strict firearm regulation; it is
evidence that a significant reduction of gun violence will require
comprehensive federal legislation.

110. This Article focuses on the rhetoric of the NRA, by far the
largest and most prominent voice in the gun lobby. There are a number
of other pro-gun lobbying groups, including Neal Knox's Firearms
Coalition, the Citizens' Committee for the Right to Bear Arms, the Gun
Owners of America, and the Gun Owners Action League. Most of these
have some link to the NRA, and most are even more extreme; some are
associated with survivalist and white-supremacist movements.
SUGARMANN, supra note 2, at 129-40 (describing the NRA's "fellow
travellers").

111. NRA Is Back, LaPierre Tells Board, AM. RIFLEMAN, Dec. 1992, at
47, 47 (reprinting LaPierre's September 1992 speech to the NRA Board
of Directors).

112. See, e.g., 131 CONG. REC. 2027 (daily ed. May 8, 1985) (remarks
of Rep. John McKernan, inserting the April 22, 1985 acceptance speech
of NRA President Garcelon) (stating that the "NRA's most important
responsibility" is "opposing gun control of all kinds and in all
political jurisdictions").

The NRA was not always focused so intently on political lobbying. The
group was founded in New York City in 1871 to "promote rifle practice"
¾ a goal based on concern over poor shooting by Union soldiers during
the Civil War. OSHA GRAY DAVIDSON, UNDER FIRE 28 (1990). During its
early years of existence, the organization was less interested in
politics than in promoting riflery competitions and, later, hunting.
Anti-gun control efforts began as early as 1911, when NRA President
James Drain opposed New York's proposed Sullivan Law with the
now-familiar claim that "[s]uch laws have the effect of arming the bad
man and disarming the good one to the injury of the community." Id. at
29. At the national level, the NRA was vigorously opposing gun control
legislation as early as the 1930s, unleashing a massive letter-writing
campaign that resulted in a watered-down National Firearms Act of
1934. Three decades later, Senator Thomas Dodd (D-Conn.) blamed the
gun lobby for a duplicitous effort that killed Dodd's bill, S. 1975,
88th Cong., 1st Sess. (1963), in August of 1963. The bill would have
imposed new regulations on the sale of firearms in interstate
commerce. SUGARMANN, supra note 2, at 36 -37.

The impetus for the NRA's reincarnation as a single-interest lobby
came with a split in the membership over its response to the Gun
Control Act of 1968 ("GCA"), finally enacted five years after John F.
Kennedy's assassination. Although the NRA's then-Executive Vice
President, Franklin Orth, testified in favor of the GCA, many NRA
members were furious and violently oppposed any form of gun control.
Davidson , supra, at 30. Ultimately, the NRA managed to water down the
bill, persuading both houses of Congress to reject registration
requirements included in Kennedy's original bill. Sugarmann , supra
note 2, at 39 - 40. The split that began with divisions over the GCA
exploded in the Cincinatti Revolt of 1977, when a group of Second
Amendment absolutists headed by Harlan B. Carter seized control of the
organization's leadership and placed single-minded defense of gun
rights at the top of the NRA's agenda. DAVIDSON, supra, at 30. Current
NRA Executive Vice President Wayne LaPierre, Jr. personifies the
transition from a sportsman's group to a lobbying organization;
LaPierre is a professional political consultant and "consumate
Washington insider," who has displayed neither ability with, nor
affinity for, firearms. Id. at 241.

113. Frank Smyth, Crossfire, VILLAGE VOICE, June 21, 1994, at 26. In
1993, the NRA outspent the largest gun control group, Handgun Control,
Inc., by 12 to 1 on activities related to legislative affairs. Tom
Diemer, Opponents of NRA Are Chipping Away, PLAIN DEALER (Cleveland),
Oct. 12, 1993, at 1A (describing growing opposition to NRA). The NRA's
overall $88 million annual budget in 1992 dwarfed that of Handgun
Control, Inc. by almost 40 to 1. Id.

The NRA's Political Victory Fund doles out millions of dollars each
year to friends, and to challengers of enemies. DAVIDSON, supra note
112, at 80. Although not always effective, the NRA often buys itself
legislative success. Id. For instance, a Washington Post story
documented that 80% of the legislators who ultimately supported the
NRA-drafted McClure-Volkmer Act of 1986 had received campaign
contributions from the gun group. Id. The Post editorialized that the
victory should be credited to the NRA's "paid army of House members."
Id. The strings attached to NRA donations are clearly visible to all
takers. The Political Victory Fund demands that politicians take what
is effectively a loyalty oath ¾ a questionnaire asking whether the
candidate favors background checks and restrictions on the purchase of
semiautomatic assault weapons. Jim Drinkard, PACS Demand Answers
Before Giving Funds, L.A. TIMES , Apr. 11, 1993, at A8.

114. In the first half of 1990 alone, the NRA sent out 51.3 million
pieces of mail. Mailings included 344 ILA legislative alerts, 67 ILA
fund raisers, 14 membership promotions, 3 insurance promotions, and 15
miscellaneous mailings. DAVIDSON, supra note 112, at 149. Former ILA
Director Richard Gardiner estimates that the NRA spent $10 million on
its membership mailings in 1991. Id. at 141.

115. The NRA must be admired for its effectiveness in mobilizing and
educating its members as to effective lobbying techniques, including
letter- writing and face-to-face confrontations in local meetings with
legislators. Gun activists write frequent letters and columns laying
out the finer points of these lobbying methods in American Rifleman,
the NRA's lead publication. Each month, the magazine awards prizes to
the NRA's Letter of the Month contest award winner.

116. The 3.3 million figure may be somewhat misleading. Dave
Edmondson, a gun activist heading the NRA's State Association
Coordinating Committee, says that half of the 900,000 new members who
have joined since 1991 dropped out after one year. Smyth, supra note
113, at 30.

117. National Rifle Ass'n, What's the First Step to a Police State?,
AM. RIFEMAN, Oct. 1993, at 52A (advertisement).

118. Letter from Wayne LaPierre, Executive Vice President, National
Rifle Ass'n, to NRA Members, NRA Defend the Constitution Campaign 3
(June 1994) (on file with the Boston University Law Review).

119. All major national law-enforcement organizations have split with
the NRA. In June of 1994, the major sportsman's magazine Field and
Stream, "made a landmark decision to break with the NRA." Smyth, supra
note 113, at 30.

120. The NRA has lost recent legislative battles, not only at the
national level over the Brady Handgun Violence Prevention Act, Pub. L.
No. 103-159, 107 Stat. 1536 (1993) (codified at 18 U.S.C. §§ 921- 924
(Supp. V 1993), and the assault-weapons ban of the 1994 crime bill,
Public Safety and Recreational Firearms Use Protection Act, Pub. L.
No. 103 -322, §§ 110101- 110106, 108 Stat. 1796 (1994) (codified at 18
U.S.C.A. §§ 921- 924 (West Supp. Nov. 1994), but also at the state
level: in Virginia, 1993 Va. Acts ch. 486, § 1 (codified at VA. CODE
ANN. § 18.2-308.2:2(Q) (Michie Supp. 1994)) (establishing a
one-handgun-per-month purchase limit); Connecticut, Pub. Act No.
93-306 (1993) (enacting an assault-weapons ban); and New Jersey,
Assembly Bill No. 7 (1992) (failing to repeal the assault-weapons ban
of 1990 N.J. Laws ch. 32).

121. The gun lobby has been operating in the red for the last three
years, and its reserves have slipped from $90 million to about half of
that total. Philip Weiss, A Hoplophobe Among the Gunnies, N.Y. TIMES ,
Sept. 11, 1994, § 6 (Magazine), at 65. During the past two years, the
NRA has outspent its revenues by almost $60 million, leading to a
reduction in member services such as shooting competitions and
firearms training. Smyth, supra note 113, at 30 (describing the NRA's
emphasis on political action at the expense of the sporting and safety
activities with which it has traditionally been associated). Even by
1988 these member services were receiving only 11% of NRA resources,
down from 19% in 1980. Richard Lacayo, Under Fire, TIME , Jan. 29,
1990, at 16, 19. The group was so desperate to raise money that it
sold a name-and-address list of its members for profit ¾ an act that
would completely violate the gun lobby's concern that any listing of
gun owners is a first step for confiscation. See Shirley R. Bonus,
Attention NRA Members; You've Been Sold Out, GANNETT SERVICE NEWS,
Mar. 2, 1994 (describing the columnist's reaction to discovering that
the NRA had sold her name via an address list), available in LEXIS,
News Library, Wires File. In the last few years, American Rifleman has
also warned members that a variety of NRA brochures, pamphlets, and
publications previously provided free of charge to members will now be
"subscription only."

122. As one author summarizes the situation:

The gun-owning community [that the NRA] purports to represent has
split, with fissures between sport shooters and Second Amendment
'fundamentalists' cracking visibly open for the first time . . . .
Dissent is also on the rise internally with many of its state
associations directly challenging national leaders. Meanwhile, most
dues-paying NRA members have little sense of how the organization is
run.

Smyth, supra note 113, at 26; see also Lacayo, supra note 121, at 16
("Some NRA members complain that the organization is in the grip of
extremists who have turned off the public . . . . "). A March 1993
Gallup Poll showed that a majority of gun owners favor many of the
proposals opposed most vehemently by the NRA. The Brady Bill was
supported by 88% of gun owners, while a complete ban on assault-weapon
possession and a one-gun-a-month law similar to Virginia's 1993
enactment both garnered a 60% favorable rating. Dennis Cauchon, Poll:
Owners Favor Gun Laws, USA TODAY , Mar. 17, 1993, at 1A. A January
1990 poll brought similar results. Lacayo, supra note 121, at 16.

Led by Ernest Lissabet, former NRA members have formed a counterlobby
called the American Firearms Association, which consists of gun owners
who favor "common sense" firearm regulation measures such as the
assault-weapons ban and the Brady Law's waiting period. Lissabet told
reporters, "This is a rebellion. The NRA is not the organization I
joined a long time ago. It used to stand for good citizenship and
sporting values . . . Now the NRA stands for Street Sweepers, 357
Magnums, AK 47s and for heaping ridicule on anybody who happens to
oppose them." Joel P. Engardio, Ex-NRA Member Starts Gun Group of
"Common Sense", BOSTON GLOBE, Aug. 17, 1993, at 11.

123. DAVIDSON, supra note 112, at 141; see also Smyth, supra note 113,
at 31 ("The NRA is bleeding ¾ but like any wounded beast, it is likely
to be more dangerous now than before.").

124. Compare, e.g., Chuck Raasch, NRA Shows Signs of Political Wounds,
Gannett News Service, May 18, 1994, available in LEXIS, News Library,
Wires File with Haya El Nasser, Gun Smoke Clears and the Lobbyists Are
Still Standing, USA TODAY, Dec. 28, 1994, at 2A.

125. The 1994 crime bill's ban on 19 types of assault weapons and
copycat models was a hard-fought victory for gun control activists. In
the face of withering lobbying on both sides, the original measure
only passed by a thin 216 -214 margin in the House, 1994 House Roll
No. 156, May 5, 1994 (passage of H.R. 4296, 103d Cong., 2d Sess.),
available in LEXIS, Legis Library, Votarc File, and a 56-43 margin in
the Senate, 1993 Senate Vote No. 375, Nov. 17, 1993 (adoption of
Feinstein amendment to S. 1607, 103d Cong., 1st Sess.), available in
LEXIS, Legis Library, Votarc File. But the win may prove fleeting. See
Naftali Bendavid, Losing Control; After Betting on Winners, NRA
Targets Reform, LEGAL TIMES, Nov. 21, 1994, at 1. In the wake of its
$4 million investment in the 1994 election cycle, the NRA takes credit
for the Republican resurgence, and the lobby is now aiming to repeal
the assault-weapon ban. Katherine Q. Seelye, Gingrich and N.R.A. Will
Delay Effort to Repeal Ban on Assault Weapons, N.Y. TIMES , Jan. 28,
1995, at 7.

Despite a very itchy trigger finger, the NRA has regretfully agreed to
an April 1995 target date to begin repeal of the ban. In the weeks
before the storm, the repeal remains profoundly unpopular, with one
NBC poll showing 4 to 1 public support for the ban. The tactic will
likely be to attach the repeal to a separate provision setting
mandatory minimum sentences for anyone using a gun while committing a
crime. Id. By linking the unpopular repeal to a sensible law-and-order
provision, the gun lobby hopes to force the consensus-seeking
President into taking the politically bitter with the politically
sweet.

In exchange for the gun lobby's cease-fire until April, Gingrich has
also promised a series of "educational hearings intended to show that
'gun control does not reduce crime,' " in the words of Tanya K.
Metaksa, the top NRA "educator" and lobbyist. The Republican plan is
to wait until enactment of the less controversial (!) aspects of the
Republican campaign manifesto. Id. With pro-gun Republicans picking up
so many seats in the House, repeal is likely. Prospects for repeal are
improving in the Senate ¾ new Senate Judiciary Chair Orrin Hatch is a
long-time gun-rights supporter, and a battle is shaping up among
presidential hopefuls over which might be the most pro-gun-rights. See
Jerry Gray, Dole, in a 2d Nod to Right, Pledges to Fight Gun Ban, N.Y.
TIMES , Mar. 18, 1995, at 1.

Even if the assault-weapons-ban repeal ultimately fails in the Senate,
or in the face of a promised presidential veto, the gun lobby is bound
to win most of the battles in the next two years. Emboldened NRA
lobbyists and their resurgent Capitol Hill supporters will tear into
the Bureau of Alcohol, Tobacco, and Firearms and the Federal Bureau of
Investigation over the clumsy and brutal handlings of the Waco and
Randy Weaver standoffs, respectively. Seelye, supra, at 7. In addition
to airing legitimate outrage, the goal will be to emasculate
enforcement of existing gun laws. When Republicans held the Senate in
the early 1980s, the ATF budget was slashed by $40 million, a ban on
the importation of surplus military rifles was lifted, and gun owners
were given the green light to travel with their weapons through states
in which their weapons would otherwise be illegal. Bendavid, supra, at
1. The Republican House has already begun work on similar steps,
excluding the ATF from the current crime bill's extension of the
good-faith exception to the exclusionary rule. H.R. 920, 104th Cong.,
1st Sess., § 601(d) (1995).

126. By labelling every measure that in any way affects access to
firearms as the first step down an inevitable slippery slope leading
to confiscation of all weapons, the NRA attempts to keep its members
in a state of constant panic and paranoia over the supposedly
totalitarian machinations of an allegedly hostile federal government.
As then-NRA President Ray Arnett once admitted to journalist Dan
Moldea, "You keep any special interest group alive by nurturing the
crisis atmosphere: 'Keep sending those cards and letters in. Keep
sending money.' " DAVIDSON, supra note 112, at 149. Although one
proposal, that of Senator John H. Chafee (R-R.I.), has called for a
ban on handguns, it does not contemplate confiscation. S. 892, 103d
Cong., 1st Sess. (1993). Virtually no one in the gun control movement
calls for confiscation.

127. Fighting the Morton Grove, Illinois handgun ban, the NRA engaged
in frequent misrepresentation, claiming that police would have power "
'to search any home, to seize and confiscate strictly on a suspicion
that there may be a gun in the home.' " DAVIDSON, supra note 112, at
133. The ordinance provided for no such enforcement measures. Id.

128. According to then-Oklahoma Democratic Representative Mike Synar,
who survived a nearly $200,000 NRA-funded campaign attack in 1992,
"The NRA's whole lobbying technique is fear and intimidation." Davis,
supra note 107, at 9A. Former Senator Howard Metzenbaum candidly
admits that "there are a lot of senators and congresspersons who are
afraid of the NRA." ABC News/"Time" Forum: Guns (ABC television
broadcast, Jan. 24, 1990), available in LEXIS, News Library, Script
File. And the fear is certainly not unwarranted, as Congressmen Synar
discovered in 1994, when the relentless NRA supported a successful
challenge to him in the Democratic primary. See Sara Rimer, Oklahoma
Democrat Loses Democratic Primary, N.Y. TIMES , Sept. 21, 1994, at
A21.

129. In full-page print advertisements in Time, Newsweek, and USA
Today, the NRA claimed falsely that former San Jose, California Police
Chief Joseph D. McNamara favored legalization of all drugs. McNamara,
a prominent gun control advocate in the law-enforcement community, had
never said he supported legalizing drugs. DAVIDSON, supra note 112, at
102- 03; cf. Wayne LaPierre, The Final War Has Begun, AM. RIFELMAN,
June 1994, at 51, 53 (labeling Rep. Charles Schumer as "the criminal's
best friend in Congress" based on his "consistent anti-gun record").

130. See supra note 113.

131. Former San Jose, California Police Chief Joseph D. McNamara
describes the NRA as a "shill for the gun manufacturers and gun
dealers." DAVIDSON, supra note 112, at 101- 02.

132. David C. Morrison, The Domestic Arms Race, 24 Nat'l J. 1548
(1992).

133. AM. RIFELMAN, Apr. 1994, at cover. The overwhelming majority of
American Rifleman covers are devoted to lavish praise of various
firearms products.

134. In 1990 the firearms industry spent $7.4 million advertising in
NRA publications, comprising eight percent of the toal NRA budget.
During the 1960s, when other revenues and membership rolls were lower,
industry advertising could account for more than 25% of the NRA
budget. SUGARMANN, supra note 2, at 88.

135. For the gun lobby, fear is an equally effective selling point for
its commercial interests as it is in the political arena. See supra
note 126 and accompanying text. As one former congresswoman said of
the NRA's "Refuse to Be A Victim" campaign, which is designed to
enlist women as self-defense-oriented gun owners: "[The] message is
clear: don't be a victim, buy a gun; it's purpose is to scare women
into buying a gun . . . . These ads are exploiting fear to market a
product, a product which kills far more innocent people than it
protects." Michael R. Irwin, Congresswomen Miss the Mark On 'Refuse to
Be a Victim', AM. RIFLEMAN, Dec. 1993, at 22, 22 (reporting the
remarks of Pennsylvania Rep. Marjorie Margolies-Mezvinsky).

136. As the NRA thundered in a recent issue of American Rifleman:

It doesn't matter to the Washington aristocracy that criminal
predators will rule your streets while the political storm troopers
take you downtown. They don't care if thugs break into your home or
steal away with your children. What matters to them is you. What they
want are your rights.

Line Up and Shut Up, AM. RIFLEMAN, Jan. 1994, at 32, 33.

137. SUGARMANN, supra note 2, at 143.

138. The NRA's "Refuse to Be a Victim" program operates hand in hand
with various gun manufacturers' efforts to target the lucrative and
barely- developed women's market. See, e.g., Sixty Minutes: Arms and
the Woman (CBS television broadcast, Oct. 10, 1993); see also
SUGARMANN, supra note 2, at 147 (quoting Minutes of the Meeting of the
Board of Directors of the NRA, Apr. 22-23, 1985: "Another segment of
our population which needs more emphasis is women of all ages and
avocations. We can easily double or triple our ranks by enlisting
millions of women."). Claims that the gun lobby and gun manufacturers
have targeted women out of benevolent concern are belied by trade
industry publications touting sales to women based on the necessity of
"captur[ing] new markets" ¾ particularly one that "represent[s] 53% of
America's population." SUGARMANN & RAND, supra note 3, at 19.

139. In response to the slump in handgun sales in the early 1980s,
firearms manufacturers developed new lines of powerful, high-capacity,
and technically advanced pistols. Many of the new semiautomatic
handguns are classified as "assault weapons" because of their
"sporterized" features, such as attachable ammunition clips, magazines
capable of firing dozens of rounds in a minute, flash suppressors, and
threaded barrels for silencers, all designed for less detectable
firing ¾ in a duck blind (perhaps) or "in a highly complex society or
in a clandestine operation." SUGARMANN & RAND, supra note 3, at 22
(quoting a Claride Hi-Tec, Inc. advertisement). One author has
observed:

Pistols, which accounted for only 32 percent of the 2.3 million
handguns produced domestically in 1980, had reached 69 percent of the
domestic production by 1989. During that time, the old .38 calibers
were replaced in popularity by more deadly models, particularly the 9
mm gun ¾ which quickly became the gun of choice "among drug dealers,
gangs and television and movie script writers."

SUGARMANN, supra note 2, at 97. These "assault weapons" account for
only one-half of one percent of all guns in circulation, but make up
10% of all guns traced to crime. Jim Stewart & Andrew Alexander,
Assault Weapons Muscle in on the Front Lines of Crime, COX NEWSPAPERS,
May 21, 1990, at 1.

140. Not yet in Webster's, but I offer:

ne·cro·mer·chant (nek'rõ-mûr'chant) n. [NLat. < Gk. nekros, corpse +
ME < Or. marcheant < VLat. *mercantans < Lat. mercari, to trade] One
whose occupation is the buying and selling of the implements of death
for personal profit.

Accord Bob Dylan, Masters of War, on THE FREEWHEELIN' BOB DYLAN
(Columbia Records 1963):

Come you masters of war,
You that build all the guns

You put a gun in my hand
And you hide from my eyes
And you turn and run farther
When the fast bullets fly . . . .

You fasten the triggers
For the others to fire
Then you sit back and watch
When the death count gets higher
You hide in your mansion
As young people's blood
Flows out of their bodies
And is buried in the mud . . . .

Let me ask you one question
Is your money that good
Would it buy you forgiveness
Do you think that it could

I think you will find
When your death takes its toll
All the money you made
Will never buy back your soul . . . .

141. See, e.g., Weathers, supra note 9, at 134 (observing that gun
manufacturers are turning out weapons in "bright Crayola-crayon
colors" and guns designed to be clipped inconspicuously on a belt like
a beeper).

142. One gun maker, the FIE Corporation

urged gun owners to 'Take the 'LAW' Into Your Own Hands' with its
Franchi LAW- 12 shotgun. Advertisements for the SWD 9mm MAC-11
showcased a '30s gangster holding the gun's presumed antecedent, the
Thompson machine gun. The MAC ¾ as "American As God, Mom And Apple
Pie"¾ was "The Gun That Made The '80s Roar." In ads for the Street
Sweeper ¾ a revolving cylinder riot shotgun ¾ SWD warned, 'It's a
Jungle Out There. Make you [sic] streets safe and clean with the help
of!'

SUGARMANN, supra note 2, at 204-05. Another manufacturer, Intratec,
advertises its assault pistols as offering "a high volume of
firepower," a " 'TEC-KOTE' " finish that "provides a natural lubricity
. . . [that offers] . . . excellent resistance to finger prints" and
being "as tough as your toughest customers." SUGARMANN, supra note 3,
at 24 n.38; see also Alix M. Freedman, Behind the Cheap Guns Flooding
the Cities is a California Family, WALL ST. J. , Feb. 28, 1992, at A1
(detailing a lucrative family business of manufacturing inexpensive
handguns, a favorite weapon for many street criminals).

143. SUGARMANN, supra note 2, at 89 (describing the "blizzard of
contests that seem to dominate NRA mailings"); see, e.g., Mailing from
National Rifle Ass'n, Great Guns Giveaway, July 1994, at 1 (on file
with the Boston University Law Review) ("You're on Your Way to WIN
FREE GUNS!").

144. NRA "Round Up", AM. RIFLEMAN, Dec. 1992, at 56, 56. Customers
were further assured that they "may also elect to contribute an amount
greater than the 'round up' amount." As of August 1992, the round-up
program had raised $127,596 for the NRA/ILA Endowment To Protect The
Second Amendment. Id.

145. SUGARMANN, supra note 2, at 88 (noting the relationship between
the firearms industry and the NRA).

146. See, e.g., Larry Martz, God and Money, NEWSWEEK, Apr. 6, 1987, at
16, 18 (relating stories of greed, lust, and hostile takeovers among
televangelists, and noting that "ministries on 221 TV stations now vie
for donations that may total anywhere from $1 billion a year to twice
that figure"); cf. Cal Thomas, The Challenge for Christians, BUFFALO
NEWS, July 12, 1994, at B3 ("Too many preachers tolerate 'sin in the
camp' because they are more interested in building big congregations
and church construction projects and their next pastoral assignment
than they are in preaching the uncompromising and uncomfortable
message contained in the Gospel.").

147. Lacayo, supra note 121, at 16; see also Baer et al., supra note
2, at 22 (describing gun owners' fear of political tyranny as "a
long-lived political creed, bordering today on theology among some
followers, in favor of popular access to arms as a counter to
tyranny"); see also Morrison, supra note 132, at 1548 ("Central to the
NRA's potency is its evangelical zeal.").

148. Daniel Voll, The Right to Bear Sorrow, ESQUIRE, Mar. 1995, at 75,
80.

149. Morrison, supra note 132, at 1548.

150. Davidson, supra note 112, at 134 -35.

151. Firearms are far more than "mere consumer products," contends one
gun control activist. "They're totems. For many they're nothing less
than the physical embodiment of freedom." SUGARMANN, supra note 2, at
90 - 91.

152. See, e.g., National Rifle Ass'n, AM. RIFLEMAN, Dec. 1992, at 88,
88 (advertisement) ("As we celebrate the holiday season, let us pause
and give thanks for one of God's greatest gifts of all: freedom.").

153. Kathyn Kahler, America's Love and Fear of Guns Turning into a
Fatal Attraction, HOUSTON CHRON., Nov. 22, 1992, at A7.

154. These same visions, of course, spur political action and gun
purchases. See supra notes 128, 137 and accompanying text.

155. See generally Bogus, supra note 11, at 1365 - 66.

156. Novelist James Jones describes the feeling as follows: "The world
was rocketing to hell in a bucket, but if he could only hold onto his
pistol, remain in possession of the promise of salvation its beautiful
blued-steel bullet-charged weight offered him, he could be saved."
JAMES JONES, THE PISTOL 35 (1958).

157. Kahler, supra note 153, at A7; see also Edward Diener & Kenneth
W. Kerber, Personality Characteristics of American Gun Owners, 107 J.
SOC. PSYCHOL. 227, 228 (1979) ("[A] gun asserts a person's strength
and invulnerability." (citations omitted)).

158. Several studies suggest that a gun in the home is more a recipe
for family tragedy than personal safety, although the methodology in
these surveys is subject to serious challenge. See, e.g., Arthur L.
Kellerman et al., Gun Ownership as a Risk Factor for Homicide in the
Home, 329 NEW ENG. J. MED. 1084, 1084 (1993) (reporting the results of
a five-year study of homicides in three metropolitan areas, which that
showed that a handgun in the home nearly triples the risk of death for
occupants); Arthur L. Kellerman & Donald T. Reay, Protection or Peril?
An Analysis of Firearm Related Deaths in the Home, 314 NEW ENG. J.
MED. 1557, 1558 (1986) (reporting the results of a five-year study of
medical and police reports regarding gunshot deaths in King County,
Washington, which revealed that a firearm kept in the home was 18
times more likely to kill a family member than a stranger). But see
Wayne LaPierre, Guns Protect the Home, USA TODAY, Oct. 11, 1993, at
12A (challenging Kellerman's study for ignoring the findings of
criminologist Gary Kleck that 99.8% of defensive firearm use involves
no homicide, and that citizens use firearms for self-protection
approximately 1.1 million times per year).

159. Kahler, supra note 153, at A7.

160. Sue Anne Pressley & Keith Harriston, A Crazed Fascination with
Guns, WASH. POST, Feb. 2, 1992, at A1, A10. As two teenagers from East
Orange, New Jersey once told a reporter, "The people I know who carry
guns carry guns because they feel it makes them better than you . . .
That gun gives them the respect they don't get from other places."
Felicia R. Lee, Where Guns and Lives Are Cheap, N.Y. TIMES, Mar. 21,
1993, at A33. In Lawrence Kasdan's movie, Grand Canyon (20th Century
Fox 1991), the tow-truck operator played by Danny Glover tells a
young, armed gang member about to mug Kevin Kline: "You don't got the
gun, we ain't having this conversation." The gang member replies:
"That's what I thought. No gun. No respect. That's why I always got
the gun." Jeff Silverman, Romancing the Gun, N.Y. TIMES, June 20,
1993, § 2, at 1, 25 (quoting this dialogue).

161. Russell Baker, Gunning for Respect, N.Y. TIMES , June 4, 1994, at
A19 (describing the types of "disrespectful" behavior for which
shooting someone is considered just punishment).

162. Would-be Reagan assassin John Hinckley, a white,
upper-middle-class product of the privileged suburbs around Dallas,
attended one of the best public high schools in the country. Neil
Henry & Chip Brown, An Aimless Road to a Place in History, WASH. POST,
Apr. 5, 1981, at A1. In his poem, "Guns are Fun," Hinckley noted the
"pornographic power" that he could unleash "[w]ith one little squeeze
of the trigger . . . [a]ll because I own an inexpensive gun."
Hinckley's poem reads in full:

See that living legend over there?

With one little squeeze of the trigger

I can put that person at my feet moaning and groaning and pleading
with God.

This gun gives me pornographic power.

If I wish, the President will fall and the world will look at me in
disbelief.

All because I own an inexpensive gun.

JERVIS ANDERSON, GUNS IN AMERICA 10 (1984).

The connection between guns and male sexuality is common. "The most
celebrated explanation [for the popularity of firearms in the United
States] has come from the psychoanalytic tradition in which guns are
seen as phallic symbols which represent masculine power. A related
explanation emphasizes the feelings of power and virility that a gun
bestows on its owner." Diener & Kerber, supra note 157, at 227
(citation omitted).

163. ANDERSON, supra note 162, at 20.

164. Id.

165. Id. at 21.

166. Id. at 22.

167. Thomas Edison (1903).

168. Republic Picture Corp. (1952).

169. As one observer has noted:

[G]uns in movies (and on television) don't surprise us anymore; they
just get larger, sleeker, more powerful and more destructive. Cameras
caress them from every angle. By size and design they are there to
draw attention to themselves. In some cases, they are the stars. They
have become more than just characters; they've become sex symbols ¾
for both men and women.

Silverman, supra note 160, at 1.

170. Henry Allen, The Mystique of Guns, WASH. POST, Apr. 19, 1989, at
D1:

No other country makes movies and television shows where the guns have
such life in themselves. It's an esthetic tradition, a genre:
"Winchester '73," "Have Gun Will Travel," "Gunsmoke," "The Left-Handed
Gun," "Gunfight at the O.K. Corral," "The Rifleman" . . . . We've
named both a movie and a malt liquor after a gun: "Colt 45." The only
comparison to the gun in American movies is the sword in samurai
movies.

171. SUGARMANN, supra note 2, at 203-04 (" 'The Mac-10,' a criminal
purred in the opening of a Miami Vice episode, 'it slices, it dices.'
. . . When the futuristic Steyr AUG assault rifle was featured on one
episode, gun stores across the country received inquiring calls.").

172. It should be no surprise that the back pages of American Rifleman
would carry an ad for a "Special Collector Clint Eastwood Issue" from
a movie magazine company, boasting 72 pages and over 50 action photos.
Films in Focus, AM. RIFLEMAN, Apr. 1994, at 66, 66 (advertisement).

173. E.g., DEATH WISH (Paramount 1974).

174. The Death Wish star was the natural role model for a subway rider
named Bernie Goetz. Goetz was celebrated in the tabloid press and by
many gun owners for responding to some African-American youths'
somewhat menacing request for $5 by exercising the "right to bear
arms." Goetz never saw the screwdrivers hidden in one youth's coat,
and said that he knew they did not have a gun, but was sure the teens
wanted to "play" with him in a violent way. So Goetz stood and fired
four rounds, three of which hit Troy Canty, Barry Allen, and James
Ramseur. Although he missed Darryl Cabey the first time, Goetz turned
his gun on Cabey again as the boy cowered at the end of the car. The
second shot severed Cabey's spinal cord. See generally People v.
Goetz, 506 N.Y.S.2d 18 (1986).

175. PolyGram (1993).

176. Warner Bros. (1994).

177. Warner Bros. (1993).

178. David Elliott, Even Sly Fans May Have Trouble Buying into This
Hunky Action Film, SAN DIEGO UNION-TRIB. , Oct. 9, 1993, at E5.

179. Warner Bros. (1993).

180. Metro-Goldwyn Mayer (1991).

181. The "industrial metal" band Nine Inch Nails scored a hit with
their album The Downward Spiral (Warner Bros./Interscope 1994),
featuring a title song that includes the lyrics: "He couldn't believe
how easy it was. He put the gun in his face. Bang. So much blood for
such a tiny little hole." Id. "Gangsta" rap is loaded with hymns to
high-powered firearms, with titles like Rat-Tat-Tat-Tat and Throw Ya
Gunz, and choruses like Cypress Hill's "Cock the hammer, it's time for
action," CYPRESS HILL, Hand on the Pump, on CYPRESS HILL
(Ruffhouse/Columbia 1991), quoted in John Leland, Criminal Records,
NEWSWEEK, Nov. 29, 1993, at 59, 60, and Snoop Doggy Dogg's "But watch
the gun by my side/Because it represents me and the motherf---in'
eastside." SNOOP DOGGY DOGG, GZ and Hustlas, on DOGGY STYLE (Death
Row/Interscope 1993), quoted in Leland, supra, at 60. Guns are also
prominently featured in songs by rap artists Dr. Dre, Onyx, Spice 1,
Nate Dogg, and Warren G. Yumi Wilson, Back Beat of Pain and Anger in
Music, SAN. FRAN. CHRON. , May 31, 1994, at E1.

182. The American Psychological Association has estimated that "a
child who watches two to four hours of TV daily will have witnessed
8,000 murders and 100,000 other acts of violence by the time he or she
leaves elementary school." Joint Hearing of the Constitution Subcomm.
and the Juvenile Justice Subcomm. of the Senate Judiciary Comm. on
Violence on Television, Federal News Service, June 8, 1993 (testimony
of Rep. Charles Schumer), available in LEXIS, News Library, Script
File.

183. See, e.g., Howard Kurtz, Murder! Mayhem! Ratings! Tabloid
Sensationalism is Thriving on TV News, WASH. POST, July 4, 1993, at
A1.

184. Warner Bros. (1987).

185. E.g., FIRST BLOOD (First Blood Assoc. 1982).

186. Orion (1987).

187. Fox (1988).

188. Movie gun violence appears to be reaching new levels of
callousness as we near the end of the century. Consider the classic
bullet-strewn sequences in movies of the 1960s and 1970s, such as the
slow-motion machinegun slaughtering of Bonnie and Clyde (Warner Bros.
1965), and The Godfather (Paramount 1972) sequence near the end of the
film juxtaposing the baptism of Michael Corleone's nephew with the
systematic termination of the family's enemies. These movies were as
bloody as any, but the "pain and damage wrought by violence are
intrinsic to these films." The 1990s gun movies like True Romance
(Warner Bros. 1993) and Kalifornia (PolyGram 1993) instead seem to be
glorifying "an almost cartoonish violence" in which "the motivations
for killings are often unclear" and "often, the violence is seen as a
lark . . . . [V]iolence inflicted by sexy young renegades in a highly
stylized fashion with little or no conflict to show for it." Bernard
Weinraub, Despite Clinton, Hollywood Is Still Trading in Violence,
N.Y. TIMES, Dec. 28, 1993, at A1.

Reports that Hollywood is looking to clean up its gun-toting act seem
to be greatly exaggerated. Several hours after a number of studio
executives praised President Clinton's high-profile Hollywood speech
"imploring entertainment industry leaders to curb depictions of murder
and mayhem in movies and television," those same studio heads "were in
a bidding war for a movie script in which 11 people are killed in the
first seven pages." Id.

189. Jessica Siegel, Many Viewers Agree TV Violence Is Harmful; But in
What Context?, CHI. TRIB., Aug. 8, 1993, at 1C. Television violence
appears to have similarly insidious effects. In 1982 the National
Institute of Mental Health concluded that "[a]fter 10 years of
research, the consensus among most of the research community is that
violence on television does lead to aggressive behavior by children
and teen-agers who watch the programs." CNN & Company (CNN television
broadcast, June 11, 1993) (remarks of Terry Rakolta, founder and
director of Americans for Responsible Television) (arguing that
children "are experiencing a psychotic numbness" after years of
watching endless parades of television gunplay and other mayhem at a
rate of 32 acts of violence per hour), available in LEXIS, News
Library, CNN File.

190. Pressley & Harriston, supra note 160, at A1.

191. Id.

192. Carol Kirschenbaum, Is It a Bad Rap?, AUSTIN BUS. J. , Mar. 14,
1994, at A1. Shakur himself has been charged with aggravated assault
for firing at two police officers. Ronald Smothers, Rapper Charged in
Shootings of Off-Duty Officers, N.Y. TIMES, Nov. 2, 1993, at A16.

193. Pressley & Harriston, supra note 160, at A1.

194. Id.

195. Kahler, supra note 153, at A7 ("For many urban kids, getting a
gun is as much a rite of passage as it is for a boy growing up on a
farm to have a gun of his own."). "[F]or millions of American boys,
learning to shoot and above all graduating from toy guns and receiving
the first real rifle of their own were milestones of life, veritable
rites of passage that certifed their arrival at manhood." Richard
Hofstadter, America as a Gun Culture, in THE GUN CONTROL DEBATE, supra
note 109, at 25, 29; see also Anderson, supra note 162, at 12 ("A boy
who is given a .22 rifle becomes a young man almost overnight . . . .
" (quoting the late sociologist Herman Kahn)).

196. A six-year-old Florida kindergarten student recently brought a
loaded 9mm Smith and Wesson semiautomatic revolver to school with him,
thinking that "the gun was like the ones in the Batman cartoons that
shoot 'bat bombs.' " T. Christian Miller, Kindergartener Takes Loaded
Revolver to School, ST. PETERSBURG TIMES, May 28, 1994, at 8.

197. On one recent visit to a medium-sized toy store in Manhattan, I
located nearly 50 different types of toy guns. The toy industry spent
more than $4 million in 1987 to advertise new toy guns, "including
water and dye- pellet versions of the Uzi and AK- 47." Vicki Kemper,
Biting the Bullet, COMMON CAUSE, Winter 1992, at 16, 20.

198. Ester B. Fein, Violent Playthings: Parents Ponder Choices, N.Y.
TIMES, Dec. 23, 1993, at B1.

199. Even educational toys designed to teach reading inculcate the
religion of firearms. One such toy that I recently (and mistakenly)
purchased for my son teaches children that "A" stands for "apple," "B"
stands for "book," and "G", of course, stands for "gun." No
"giraffes," "garages," or "girls" here.

200. SUGARMANN, supra note 2, at 147 (quoting Minutes of the Meeting
of the Board of Directors of the NRA, Apr. 22-23, 1985, at 90).

201. Gun activists often insist that the real problem with children
and guns is not that guns are too easily available to curious kids,
but that the youngsters simply have insufficient access to firearms,
and not enough training in firearms safety. David B. Kopel, Kids and
Guns, AM. RIFLEMAN, Aug. 1993, at 42, 42 (chastising gun control
advocates for making legitimate gun use and home education of youthful
gun users impossible).

202. Mark A. Keefe, IV, Youth Guns Today, AM. RIFLEMAN, June 1994, at
34, 34.

203. Reports that the 1992-93 school year theme was "Our Friend the
AK- 47" were greatly exaggerated. Surprisingly, it was merely: "The
Second Amendment to the Constitution: why it is important to our
nation." FCRLDF Sponsors Youth Essay Contest, AM. RIFLEMAN, Dec. 1992,
at 56, 56. See infra note 360 for a description of a similar contest
held for budding attorneys.

204. The practice of "love bombing" was initially attributed to the
followers of Rev. Sung Yung Moon's Unification Church. See, e.g.,
Kenneth Woodward et al., How They Bend Minds, NEWSWEEK, Dec. 4, 1978,
at 72, 72.

205. The NRA's membership manual states:

NRA members are Americans in the finest patriotic sense. You believe
in the Constitution and uphold its tenets. You believe in fairness,
equality and the law. You actively pursue some of this country's
oldest and finest traditions, including hunting and recreational
shooting. You've worked hard to support law enforcement and fought
hard to keep special interest groups from infringing upon our Second
Amendment rights.

NATIONAL RIFLE ASS'N, THE NRA MEMEBER GUIDE 3 (1992).

206. In one letter to NRA members, Executive Vice President Wayne
LaPierre notes pointedly that:

[1]. NRA families are three times more likely to have members who
fought ¾ and even died ¾ for the colors of the flag and ideals of our
founding fathers . . . .

[2]. Today, only 47% of the American people are regular churchgoers.
But, 78% of NRA members are regular churchgoers . . . .

[3]. The trend in America is toward single parent households ¾ but not
among NRA members. But, 82% of our NRA members are married and are
raising families . . . .

[4]. [T]he kids of NRA members are the ones graduating from high
school and college. That's because their idols aren't suicidal,
drugged-up rock stars like Kurt Cobain, or violence-crazed rappers
like Ice-T.

Letter from Wayne LaPierre, supra note 118, at 3.

207. See, e.g., Letter from Tanya K. Metaksa, Executive Director,
Institute for Legislative Action, to NRA Members 1 (May 20, 1994) (on
file with the Boston University Law Review) ("I know, from my
conversations with Jim Baker, that you share this unselfish unwavering
commitment to preserve your Constituitonal rights.").

208. Advertised in American Rifleman, the inscribed 24 -karat gold-
plated "Deluxe Museum Limited Edition Second Amendment Commemorative
.44 Magnum" commemorates only part of the Amendment, once again with
the initial clause deleted and a capital "T" magically imported. The
American Historical Foundation, AM. RIFLEMAN, Feb. 1994, at 3, 3
(advertisement).

209. See, e.g., Gun Owners Win Important Battles at Federal, State
Level, AM. RIFLEMAN, Sept. 1993, at 74, 74 (quoting NRA supporter
Senator Bob Smith's (R-N.H.) description of a proposal to raise the
cost of federal firearms dealers' licenses as "an attack on the Second
Amendment designed 'to drive the small dealers out of business' ");
see also Stephen P. Halbrook, Rationing Firearms Purchases and the
Right to Keep Arms: Reflections on the Bills of Rights of Virginia,
West Virginia, and the United States, 96 W. VA. L. REV. 1, 82 (1993)
(one-handgun-per-month law); James J. Baker, War for Your Guns, AM.
RIFLEMAN, Sept. 1991, at 36, 36 -39 (firearm registration); Marion P.
Hammer, Defend Your Rights, AM. RIFLEMAN, Sept. 1993, at 32, 32 (Brady
Bill); Jack Lenzi, Semi-Automatics Constitutionally Protected, AM.
RIFLEMAN, Sept. 1989, at 61, 61- 63 (ban on semiautomatic weapons).

210. See supra parts I.B.1-2.

211. The NRA has misinformed its members that "a growing body of . . .
case law proves that private ownership of these firearms is
constitutionally protected." Christopher C. Little, Communitarianism,
Clinton & Congress: A New Threat Emerges for Gun Owners, AM. RIFLEMAN,
Oct. 1993, at 30, 31. Despite the fact that courts have explicitly
found no constitutional right to bear arms for hunting or self-defense
purposes, the NRA assures its members that it will vigorously defend
their "right to hunt, shoot and own a gun for self-defense." Letter
from Tanya K. Metaksa to NRA Members, supra note 207, at 1. NRA
leaders regularly speak of the "constitutional right to keep and bear
arms" without mentioning the judiciary's contrary verdict.

212. See, e.g., Wayne LaPierre, Jr., Treating Guns as Cars Won't Work,
USA TODAY, Dec. 29, 1993, at 11A (arguing that it is both
impracticable and constitutionally impermissible for the government to
regulate firearms as stringently as it does motor vehicles).

213. See, e.g., Gardiner, supra note 12, at 89 - 92 (Assistant General
Counsel for the NRA (later the ILA Director) ignoring the judicial
consensus and misstating Miller); Alan M. Gottlieb, Gun Ownership: A
Constitutional Right, 10 N. KY. L. REV. 113, 118 (1982) (Chairman of
the "Citizens Committee for the Right to Keep and Bear Arms" offering
no discussion of the relevant case law beyond a standard Miller
mischaracterization); Halbrook, supra note 209, at 57 & n.231
(gun-rights litigator and activist rejecting the claim that "federal
courts [have] 'consistently' supported a 'collective rights' theory,'
" and supporting an argument that "some federal courts have recognized
the right to be an individual right," by offering out-of-context
citations to single sentences from five cases, none of which rejects
the essence of the so-called "collective rights" view); Moncure, supra
note 56, at 593 (then-Assistant General Counsel of the NRA offering
the same limited discussion). See generally infra part III.C.
(detailing scholarly treatment in favor of a broad-individual-right
view of the Second Amendment).

Some in the pro-gun camp have been slightly more willing to discuss
the case law, though none acknowledge the clear judicial consensus
rejecting their position. See, e.g., David J. Caplan, Restoring the
Balance: The Second Amendment Revisited, 5 FORD. URB. L.J. 31, 57-62
(1976) (gun-rights activist and voluntary counsel to the Federation of
Greater New York Rifle & Pistol Clubs, Inc. mischaracterizing Miller's
analysis, briefly mentioning one other federal case, and citing two
additional federal cases, only for the proposition that "[i]t has been
argued that the term 'right of the people' in the second amendment
refers exclusively to collective and not individual rights"); Robert
Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U.
DAYTON L. REV. 59, 71 (1989) (then-NRA Deputy General Counsel briefly
acknowledging, and then dismissing, the fact that "some courts have
ignored . . . [the] command" of Second Amendment); Kates, supra note
12, at 251 & n.202 (gun-rights litigator admitting that "a few state
or federal cases" have embraced the "exclusively state's right
viewpoint").

214. Lon L. Fuller, American Legal Realism, 82 U. PA. L. REV. 429, 432
(1934) (describing Llewellyn's notion of "legal certainty" in part as
"predictability of judicial action"); cf. Oliver W. Holmes, Jr., The
Path of the Law, 10 HARV. L. REV. 457, 461 (1897) ("The prophecies of
what the court will do in fact, and nothing more pretentious, are what
I mean by the law.").

215. The former dean of Harvard Law School and Solicitor General in
the Nixon Adminstration has called the right to bear arms the "Phantom
Right." Griswold, supra note 33, at C7.

216. A 1992 letter from all six stated:

Of all the arguments advanced by opponents of the Brady bill, surely
the most specious is the charge that it would infringe a
constitutional right. For more than 200 years, the federal courts have
unanimously determined that the Second Amendment concerns only the
arming of the people in service to an organized state militia; it does
not guarantee immediate access to guns for private purposes.

Nicholas Katzenbach et al., Letter, It's Time to Pass the Brady Bill,
WASH. POST, Oct. 3, 1992, at A21.

217. Burger, a life-long hunter, terms the NRA's Second Amendment
rhetoric a "fraud" paid for by the firearms industry:

[O]ne of the frauds ¾ and I use that term advisedly ¾ on the American
people, has been the campaign to mislead the public about the Second
Amendment. The Second Amendment doesn't guarantee the right to have
firearms at all . . . . It's shocking to me that the American people
have let themselves be conned . . . by the campaigns that are
sponsored and financed by the arms industry and the ammunition
industry.

Warren Burger, Press Conference Concerning Introduction of the Public
Health and Safety Act of 1992, Federal News Service, June 26, 1992,
available in LEXIS, News Library, Wires File. Burger has noted that
"very few subjects have been as cluttered and confused by calculated
disinformation circulated by special interest groups" as the Second
Amendment. Mark H. Overstreet, Warren Burger vs. the Founding Fathers,
AM. RIFLEMAN, Feb. 1992, at 53, 53; see also Tony Mauro, Bill of
Rights Has Not Been Scuttled, USA TODAY , Dec. 16, 1991, at 13A.
("[T]he National Rifle Association has done one of the most amazing
jobs of misrepresenting and misleading the public.").

218. Bork has stated that the Second Amendment operates "to guarantee
the right of states to form militia, not for individuals to bear
arms." He believes California's assault-weapons ban is, and indeed
"probably" all state gun control measures are, constitutional. Claudia
Luther, Bork Says State Gun Laws Constitutional, L.A. TIMES, Mar. 15,
1989, at B5; see also Miriam Bensimhorn, The Advocates: Point and
Counterpoint, Laurence Tribe and Robert Bork Debate the Framers'
Spacious Terms, LIFE, Fall 1991 (Special Issue), at 96, 98 ("[T]he
National Rifle Association is always arguing that the Second Amendment
determines the right to bear arms. But I think it really is people's
right to bear arms in a militia. The NRA thinks that it protects their
right to have Teflon-coated bullets. But that's not the original
understanding.").

219. See RONALD DWORKIN, LAW'S EMPIRE 225 -26 (1986) (describing "law
as integrity" as the exercise of interpretive judgment within the
framework of the "unfolding political narrative," in contrast to the
two extremes of a reactionary conventionalism and a pragmatism
divorced from tradition). The broad view of the Second Amendment is
simply inconsistent with the previous chapters of consistent case law
adopting a narrow view of the right to bear arms. See id. at 230 -31
(using as a metaphor for judicial development of the law the "chain
novel," a literary exercise in which a group of writers compose a work
collectively, each building a chapter on the foundation of the
previously-written chapters; those who ignore the general line of the
work's development violate the spirit of the enterprise).

220. See, e.g., MARY ANN GLENDON, RIGHTS TALK 2 (1991) ("[T]he real
constitution of the State is composed 'of morality, of custom, above
all of public opinion.' " (quoting JEAN-JACQUES ROUSSEAU, THE SOCIAL
CONTRACT)).

221. Diemer, supra note 108, at 1A.

222. See Lacayo, supra note 121, at 19 -20 (reporting dissension
within the NRA).

223. As Nietzsche observed, truth consists of a "moving army of
metaphors, metonymies and anthropomorphisms ... rhetorically
sublimated, transposed and beautified until, after long and repeated
use, a people considers then as solid, canonical and unavoidable.
Truths are illusions whose illusory nature has been forgotten."
FREDERICK NIETZSCHE, On Truth and Lie, in THE PORTABLE NIETZSCHE 46-47
(Walter Kaufman ed. & trans., 1982).

224. Bob Baker, The Times Poll: Nation Divided on What Law Should
Allow, L.A. TIMES, Dec. 14, 1991, at A28.

225. A Hearst poll conducted in the mid-1980s found that half of those
surveyed believed that the Constitution guaranteed their right to own
a handgun. Kristen Rand, No Right to Keep and Bear Arms, Appendix to
SUGARMANN, supra note 2, at 265. A 1978 national poll asked: "Do you
believe the Constitution of the United States gives you the right to
keep and bear arms?" 87% of respondents felt they were guaranteed such
a right. Kates, supra note 12, at 207 n.11 (citing DECISION MAKING
INFORMATION, ATTITUDES OF THE AMERICAN ELECTORATE TOWARD GUN CONTROL
(1978) (mimeo)). In a 1975 survey, 70% of those responding said the
Second Amendment "applies to each individual citizen [rather than]
only to the National Guard." Id. (citing 121 CONG. REC. 42,109, 42,112
(1975) (statement of Sen. McClure, inserting results of the 1975
survey)).

226. Several years ago, I was so moved by one NRA television
commercial that I placed an immediate call to the NRA's membership
hot-line and spoke to a "Catherine," who said that she was getting
paid to take membership information and that she was an NRA member. I
asked Catherine if she could tell me (for my research) what the Second
Amendment says. She said that she did not know, and put me on hold to
go look for the text. When she got back on the phone a few moments
later, Catherine said that she was "not provided with that
information." Disappointed but undaunted, I proceeded to redial five
times and spoke to five more persons at the same number, all but one
of whom said they were NRA members, and not one of whom had any idea
what words might be contained in the Second Amendment.

227. Rand, supra note 225, at 265.

228. 138 CONG. REC. H1168 - 69 (daily ed. Mar. 11, 1992) (statement of
Rep. Owens).

229. Former Handgun Control, Inc. President Pete Shields once
testified on Capitol Hill that he firmly believed "in the right of
law-abiding citizens to possess handguns . . . for legitimate
purposes." SUGARMANN, supra note 2, at 257. Handgun Control, Inc.
President Richard Aborn has said that "[t]here are many legitimate
people in society who have every right to possess a gun and will never
harm anyone." Kahler, supra note 153, at A7; see also Osha Gray
Davidson, Get the Facts on Gun Deaths, N.Y. TIMES, July 31, 1993, at
A21 (objecting to "useless and often counterproductive limits on the
right to bear arms").

230. Kates, supra note 12, at 206 (emphasis added).

231. The gun lobby is not alone in propagating the constitutional
confusion. Secondary school students receive inaccurate Second
Amendment stories not only from the NRA's propagandists, but from
officially approved history and civics textbooks. A survey, conducted
by the Center to Prevent Handgun Violence, of forty leading secondary
school texts showed that virtually all gave only cursory attention to
the Second Amendment and that one-half "ignore the unanimous decisions
of the courts in their two to three sentence explanation of the Second
Amendment." JUDITH BONDERMAN, TEACHING THE BILL OF RIGHTS: THE CASE OF
THE SECOND AMENDMENT/A CRITIQUE OF EXISTING EDUCATIONAL MATERIALS AND
SUGGESTIONS FOR CHANGE 1 (1991) ("Whether intentionally or not, these
textbooks are endorsing a particular political view of the Second
Amendment, rather than providing the necessary background for an
informed political discussion of gun control."). One text cited in the
survey declares that "[t]he Second Amendment to the Constitution
guarantees Americans the right to bear arms. The government cannot
forbid Americans to own weapons, such as handguns and rifles." WILLIAM
H. HARTLEY & WILLIAM S. VINCENT, AMERICAN CIVICS 79 (Const. ed. 1987),
quoted in BONDERMAN, supra, at 5.

232. RRONALD DWORKIN, TAKING RIGHTS SERIOUSLY at xi (1977)
("Individual rights are political trumps held by individuals.").

233. The NRA's chief lobbyist, Tanya K. Metaksa, captured the spirit
nicely in rejecting the suggestion that certain semiautomatic
"assault-type" weapons should be banned because citizens have no "need
for . . . weapons whose only purpose . . . is to kill many people at
once." Intoning the obstructionist party line, Metaksa replied, "It
isn't a question of need, it's a question of right." Katherine Q.
Seelye, Bill to Ban Some Assault Guns Seems Headed for House Defeat,
N.Y. TIMES, May 4, 1994, at A1, A21. Ms. Metaksa often introduces
herself by noting that her name is spelled "AK, as in AK- 47, and SA,
as in semi automatic." Smyth, supra note 113, at 28. In the same vein,
longtime NRA patriarch Harlon Bronson Carter, when asked if he would
"rather allow those convicted violent felons, mentally deranged
people, violently addicted to narcotics people to have guns, rather
than to have the screening process for the honest people like
yourselves?," responded that such a sacrifice was "a price we pay for
freedom." SUGARMANN, supra note 2, at 45.

The NRA has enthusiastically quoted Sanford Levinson's similar defense
of the Second Amendment: " '[T]o take rights seriously ... [means]
that one will honor them even when there is significant social cost in
doing so.' " Little, supra note 211, at 30 (quoting Levinson, supra
note 12, at 658). Levinson, in turn, is paraphrasing Dworkin's basic
premise: "If someone has a right to something, then it is wrong for
the government to deny it to him even though it would be in the
general interest to do so." DWORKIN, supra note 232, at 269.

234. GLENDON, supra note 220, at 171. As Glendon has persuasively
argued, the American obsession with rights has undermined our national
capacity to engage in effective politics:

Our rights-laden public discourse easily accomodates the economic, the
immediate, and the personal dimensions of a problem, while it
regularly neglects the moral, the long-term, and the social
implications . . . . Rights talk in its current form has been the thin
end of a wedge that is turning American political discourse into a
parody of itself and challenging the very notion that politics can be
conducted through reasoned discussion and compromise. For the new
rhetoric of rights is less about human dignity and freedom than about
insistent, unending desires. Its legitimation of individual and group
egoism is in flat opposition to the great purposes set forth in the
Preamble to the Constitution: "to form a more perfect Union, establish
Justice, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity."

Id. at 171-72.

235. As original Brady Bill sponsor Representative Edward Feighan
(D-Ohio) noted several years ago: "We've had to invest an enormous
amount of political capital in order to get to this point of near
passage, of a very moderate, common-sense bill like the Brady bill."
SUGARMANN, supra note 2, at 261.

236. Seelye, supra note 125, at 7 (reporting that the NRA's chief
lobbyist felt assured that the Republicans would seek repeal of the
assault weapons ban, even if not immediately).

237. Katzenbach et al., supra note 216, at A21. According to the Los
Angeles Times, "The Second Amendment has created a significant
political impediment to the passage of stronger gun control laws.
Gun-ownership advocates argue not that Congress should not, as a
matter of policy, enact such laws but rather that Congress cannot do
so because the amendment ties its hands." Taming the Gun Monster: Is
It Constitutional, L.A. TIMES, Nov. 1, 1993, at B6; see also Rand,
supra note 225, at 256; cf. Henigan, supra note 11, at 107 ("An
enduring feature of the contemporary debate over gun control is the
effort to give the debate a constitutional dimension."); Michael
Isikoff, NRA Pushes Machine Gun Ownership, WASH. POST, Dec. 28, 1990,
at A17 ("With the rising tide of gun-using violence nationwide,
considerable debate has arisen over whether the amendment's language
protects individual owners of all firearms or if it was intended
mainly to protect the weapons of state militias."); Tony Mauro, Second
Amendment: Relevant or Just a Relic?, USA TODAY, Dec. 29, 1993, at 2A
("Nobody knows quite what it means. But the Second Amendment,
ungrammatical and ambiguous, still looms large in the national debate
over guns.").

238. Id., supra note 102, at 6.

239. Feller & Gotting, supra note 11, at 46 n.3.

240. H.R.J. Res. 438, 102d Cong., 2d Sess. (1992).

241. 138 CONG. REC. H1168 - 69 (daily ed. Mar. 11, 1992) (statement of
Rep. Owens).

242. Van Alstyne, supra note 12, at 1250 (arguing that it is incumbent
on those who are so opposed to the right to bear arms "to seek a
repeal of this amendment (and so the repeal of its guarantee)").

243. See, e.g., George Will, The Embarassing Second Amendment,
NEWSDAY, Mar. 21, 1991, at 118 (arguing that "gun control advocates
who want to square their policy preferences with the Constitution
should squarely face the need to deconstitutionalize the subject by
repealing the embarassing amendment"); see also Bob Greene, A Gun-Free
Nation ¾ Just Think About It, CHI. TRIB., Aug. 23, 1993, § 5, at 1
("Maybe it is finally time to think about repealing the 2nd Amendment
. . . . ").

244. See supra part I.B; see also Richard Berke, Expensive Lobbying
Pays Off for Rifle Association, N.Y. TIMES, Sept. 22, 1988, at A32
(detailing the effectiveness of NRA donations and lobbying efforts in
derailing a proposed seven-day handgun waiting period).

245. Ann Devroy, President Rebukes Rifle Association, WASH. POST, Mar.
2, 1993, at A9.

246. A Domestic Disarmament Plan, CHI. TRIB., June 21, 1992, at 2. A
journalist describes the NRA as "the country's contemporary Murder,
Inc. intimidating Congress to protect the rights of children and
adults to kill one another. There are no controversial hit songs about
the gun lobby, but it kills more minority kids in a month than the
police do in five years." Jon Katz, Cop Killers? The Media Target the
Police, ROLLING STONE, Jan. 21, 1993, at 30, 31 (discussing the NRA's
role in increasing the availability of guns).

247. Janet Reno, What We Must Do to Fight Crime, ORLANDO SENTINEL,
Oct. 31, 1993, at G1.

248. Annually, firearms injuries drain more than $1.6 billion in
direct costs annually from the health-care system, and another $14.5
billion in yearly wage losses. Taxpayers pick up an estimated 85% of
the health-care bill. Tony Freemantle, New Arguments Are Finding Their
Targets as Effort to Limit Arms, Ammo Gains Momentum, HOUSTON CHRON.,
Dec. 5, 1993, at A1.

249. Representative Schumer suggests that "[c]riminals, terrorists,
fanatics and unstable people might begin each day by giving thanks to
the NRA" for the following measures the gun lobby has pushed through
Congress:

• preventing ATF from computerizing or unifying gun-ownership records
to trace weapons used in crimes, with the result that police must send
officers to all gun shops in a jurisdiction to check records manually,
rather than using the same types of computer records used to
investigate stolen cars.

• enabling citizens to purchase machine guns manufactured prior to
1986 ¾ in the Firearms Owners Protection Act (McClure Volkmer Act) of
1986.

• requiring ATF to process applications from felons seeking to waive
federal prohibtion on their ownership of guns, at a cost in 1992 of
$3.5 million.

• prohibiting ATF from researching the use of taggants as a device for
tracing explosives ¾ [because the same technology could be used to
trace bullets ¾ and their purchasers.

• forcing ATF to provide licenses to federal firearms dealer
applicants within 45 days, even if the necessary background check can
not be completed, resulting in licenses awarded to "dogs and dead
men."

• undermining ATF's ability to investigate and prosecute corrupt or
suspected gun dealers by reducing illegal gun sales to felons from a
felony to a misdemeanor and then prohibiting ATF from inspecting any
dealer more than once a year.

Charles E. Schumer, The Gun Lobby Is on the Run, N.Y. TIMES, April 4,
1993, § 4 (Week in Review), at 15.

250. In March of 1963, using the alias of "A. Hidell," Oswald
purchased the Mannlicher-Carcano Italian-army-surplus rifle by mailing
in $21.45 to Klein's Sporting Goods in Chicago, along with a coupon he
found in an ad in the back pages of the NRA's American Rifleman. The
gun came to Oswald via parcel post that month. DAVIDSON, supra note
112, at 30. The NRA also helped develop the high-powered ammunition
that made that "notoriously inaccurate" rifle more effective.
SUGARMANN, supra note 2, at 35.

251. Hazel Whitman, Death Sentence for School Killer, SAN. FRAN.
CHRON. , Sept. 18, 1993, at D16 (detailing Houston's murder spree).

252. The gun lobby's successful linking of gun ownership as pure
patriotism to their "Armageddon Appeals" of imminent gun confiscation
has been a double-edged sword. While proving to be

a powerful rhetorical device for recruiting new members and activating
present ones[,] such techniques also created problems for the lobby.
It produced a climate of pseudo-patriotic paranoia that easily gets
out of hand, leading to the kinds of vicious attacks on opponents that
hurt the lobby's credibility and result in a backlash. In addition,
such rhetoric may have been well suited to the Cold War era and to the
neo-Cold War period that occasioned the early years of the Reagan
presidency ¾ not coincidentally, the time of the NRA's greatest growth
¾ but an organization that still red-baits its opposition after the
collapse of communism appears foolish and not a little delusional.
DAVIDSON, supra note 112, at 157.

253. Mental Tests Ordered for Threat Suspect, UPI, July 21, 1994,
available in LEXIS, News Library, UPI File. Walling, who used the name
of his dead brother to puchase dozens of firearms in the months
leading up to his July 16 arrest, had stockpiled 40 guns and thousands
of rounds of ammunition in his van and his home. Id.

254. See, e.g., Congressman Reports Threats After Vote, N.Y. TIMES,
May 11, 1994, at A16 (stating that Rep. Dick Swett (D-N.H.) reported
receiving death threats after voting for a bill that would ban sales
of several assault-type weapons). Similarly, one Senate aide remarked:

I have never gotten so many vituperative calls on any issue that we've
ever dealt with as with the gun issue. Violent, violent calls. People
calling up threatening me, threatening the senator. Death threats. All
that crap. The one thing you learn about this issue is that the most
active people for gun rights are also the most violent people, the
people you don't want to have guns. DAVIDSON, supra note 112, at 65.
See generally Jim Stewart & Andrew Alexander, Assault Gun Foes
Targeted, COX NEWSPAPERS, June 18, 1990, at 8.

255. See, e.g., David Johnston, Psychiatric Exam Ordered in White
House Shooting, N.Y. TIMES, Nov. 1, 1994, at A18. The New York Times
described Duran as a dishonorably discharged Army medic who may have
been "drawn to the ultraconservative, citizen militia movements that
have sprung up in several Western states." Id. Duran's lawyer says
that his client had no intention of killing President Clinton, but
rather was filled with hatred for government and "shot at a . . .
powerful symbol of our country." Michael Janofsky, Man Accused to
Trying to Kill Clinton Begins Insanity Defense , N.Y. TIMES, Mar. 21,
1995, at A15.

256. Paul Blackman, Violence in America: Time to Bite the Bullet Back,
268 JAMA 3069 (1992); see also Kopel, supra note 201, at 44 ("Myth:
'Guns are the leading cause of death among older teenagers ¾ white and
black ¾ in America.' . . . Truth: True for black males, but not for
females or for males of other races.").

Of course, the NRA is hardly alone in its not-so-subtle devaluation of
the lives of poor persons of color. Reflecting and reenforcing the
limited empathic capabilities of its readers and viewers, the print
and electronic media routinely downplay the significance of shootings
in "bad" neighborhoods, quietly burying stories of Latina babies in
the Bronx killed by stray bullets and black residents of Jefferson
County, Florida, gunned down in their own neighborhoods. Meanwhile,
violent robberies outside of high-priced Manhattan jewelry stores and
slayings of West European and Canadian tourists in Florida merit
screaming headlines for weeks on end. See JACQELINE JONES, THE
DISPOSSESSED: AMERICA'S UNDERCLASSES FROM THE CIVIL WAR TO THE PRESENT
282 (1992) (remarking that black criminals receive significant media
attention when they attack affluent whites, while daily gun deaths
among inner city poor persons of color receive almost no coverage).

257. See supra note 8.

258. See SUGARMANN, supra note 2, at 159 ("None of the NRA's
leadership is black, and its board is almost uniformly white. In
looking at its annual report the number of black faces can be counted
on one hand; often they appear to be clerical employees."); see also
Smyth, supra note 113, at 26 (describing an NRA convention as
collection of mostly "beefy white men").

259. Bogus, supra note 11, at 1365 - 66.

260. Smyth, supra note 113, at 31.

261. SUGARMANN, supra note 2, at 101 (describing NRA board member Neal
Knox's publication Shotgun News).

262. President's Remarks on Signing the Brady Bill, 29 WEEKLY COMP.
PRES. DOC. 2477, 2478 (Nov. 30, 1993).

263. Reno, supra note 247, at G1; see also supra notes 3 -10 and
accompanying text (collecting statistics).

264. See President's Remarks on Signing the Brady Bill, supra note
262, at 2478 (suggesting that there is a right to bear arms).

265. In its first year of operation, the Brady Law stopped as many as
45,000 felons from purchasing handguns. Fox Butterfield, Handgun Law
Deters Felons, Studies Show, N.Y. TIMES, Mar. 13, 1995, at A16.

266. Thomas L. Friedman, Clinton Signs Bill on Guns into Law, N.Y.
TIMES, Dec. 1, 1993, at A20.

267. See, e.g., David K. Barnhizer, Prophets, Priests and Power
Blockers: Three Fundamental Roles of Judges and Legal Scholars in
America, 50 U. PITT. L. REV. 127, 151 (1988).

268. Daniel Abrams, What 'Right to Bear Arms?', N.Y. TIMES, July 20,
1989, at A23. The author said that "American lawyers should be ashamed
of their inability to transmit [the judicial consensus rejecting the
gun lobby's interpretation of the Second Amendment] to the public."
Id.

269. See, e.g., Kent Greenawalt, Free Speech Justifications, 89
COLUMN. REV. 119, 145 - 46 (1989).

270. DENNIS F. THOMPSON, POLITICAL ETHICS AND PUBLIC OFFICE 3 (1987) (
"Whatever its other elements, an adequate conception of democracy
should include, as a necessary condition, collective deliberation on
disputes about fundamental values."); cf. STEPHEN MACEDO, LIBERAL
VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL
CONSTITUTIONALISM 40-41 (1990) (contending that the "moral core" of a
liberal political order "is a commitment to public justification: the
application of power should be accompanied with reasons that all
reasonable people should be able to accept").

271. Such indicia of public opinion have become powerful directives
for government action, as politicians at all levels of government
increasingly take the electorate's pulse and guide their decisions
based, in large part, on the public mood. See, e.g., David Shribman,
Leadership by the Numbers, BOSTON GLOBE, May 29, 1994, at 67
("Washington has a lot of polls and is exercising very little
leadership."). For better or worse, if that public opinion is to be a
significant guide in political decisionmaking, we would hope that such
opinion is well-informed. See, e.g., Hans Speier, The Rise of Public
Opinion, in The Truth in Hell and Other Essays on Politics and Culture
THE TRUTH IN HELL AND OTHER ESSAYS ON POLITICS AND CULTURE 1935 -1987,
at 143, 144 (1989) ("[F]or public opinion to function, there must be
access to information on the issues with which public opinion is
concerned.").

272. Paul Brest, Constitutional Citizenship, 34 CLEV. ST. L. REV. 175,
185 (1985 - 86) ("[P]articipation, so far as the majority is
concerned, is participation in the choice of decision makers."
(internal quotation marks omitted) (quoting CAROLE PATEMAN,
PARTICIPATION AND DEMOCRATIC THEORY 14 (1970))).

273. JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES
25-28, 37-43, 57-64 (1984) (stating that elected public officials play
a central role in setting the nation's political agenda, while media
and academics, among others, have the role of formulating and debating
policy alternatives, i.e., setting and contemplating parameters).

274. GLENDON, supra note 220, at 104. Glendon admonishes judges in the
same fashion. Id.

275. Paul Brest, The Conscientious Legislator's Guide to
Constitutional Interpretation, 27 STAN. L. REV. 585, 587 (1975)
(stating that legislators have a duty to "determine, as best they can,
the constitutionality of proposed legislation").

276. See, e.g., Janey E. Ainsworth, Interpreting Sacred Texts:
Preliminary Reflections on Constitutional Discourse in China, 43
HASTINGS L.J. 273, 282 & n.35 (1992) (collecting sources and
discussing the analogy between the Constitution and the Bible).
Ainsworth notes that "[m]any American scholars have drawn parallels
between the place of scripture in our religious tradition and the role
of the U.S. Constitution in the American political culture." Id. at
281- 82.

277. MACEDO, supra note 270, at 75.

278. See Brest, supra note 272, at 183 (stating that Congress lacks
"strong traditions of constitutional decisionmaking" and has "a
widespread tendency to leave controversial questions to the courts").

279. Brest argues that

the Constitution does not appear to assign a privileged, let alone an
exclusive, role to the judiciary. On the contrary, it implies that all
legislators and public officials, both state and federal, are
obligated to interpret the Constitution. In other words, paradoxical
as it may seem, legislatures must act not only in a legislative mode,
but in a constitutional mode as well. They must determine whether
proposed legislation is permitted by the Constitution.

Id. at 180.

280. Id. at 184. It is an unhealthy condition for constitutional
citizenship in a democracy for 64% of Americans to believe that the
Constitution establishes English as the national language and for 49%
to believe that the President has the power to suspend that
Constitution. Arthur M. Schlesinger, The Constitution and Presidential
Leadership, 47 MD. L. REV. 54, 54 (1987) (noting that "nearly half" of
people believe that the Constitution contains the phrase "from each
according to his ability, to each according to his need" and 70%
believe the Constitution states "all men are created equal"); see also
Marcia Coyle, Poll Shows Many Americans Lack Knowledge of High Court,
N.Y. L.J. , Feb. 20, 1990, at 2 (reporting that only 23% of survey
respondents know the correct number of Supreme Court Justices and 51%
believe that the right to privacy is stated explicitly in
Constititution); Amy Goldstein, College Seniors Fall Short on
Humanities Questions, WASH. POST, Oct. 9, 1989, at A4 (reporting that
two-thirds of college seniors believe that the concluding lines of
Lincoln's Gettysburg address are part of the Constitution).

281. GLENDON, supra note 220, at 179.

282. Pub. L. No. 99 -308, 100 Stat. 449 (1986) (codified as amended at
18 U.S.C.A. ss 921- 929 (West 1976 & Supps. 1994 & Nov. 1994)). Also
known as the McClure-Volkmer Act, this NRA-drafted legislation
represented an astounding rollback of the nation's already feeble gun
control policy. The Act: (1) ended the 1968 Gun Control Act's ban on
interstate sale of all firearms other than handguns ¾ regardless of
local law on the subject (preliminary versions also gave the green
light to interstate handgun sales); (2) resumed mail-order sales of
ammunition; (3) removed record-keeping requirements for ammunition
dealers; (4) narrowly confined the scope of potential ATF enforcement
(including a prohibition on ATF centralization of dealer records and a
restriction on the inspection of dealer records ¾ while reducing
penalties for dealer violations); (5) required a higher standard of
proof to convict renegade dealers; and (6) permitted individuals who
had been convicted of felonies involving a gun, who had violated
provisions of the 1968 Act, or who had been involuntarily committed to
mental institutions, to apply to the ATF for "relief" from the
"disability" of not being able to own a gun. SUGARMANN, supra note 2,
at 187- 91.

This last provision of McClure-Volkmer has given relief to drug
dealers and terrorists. Id. One beneficiary of the law is gun-rights
extremist and income-tax evader Alan Gottlieb, who heads the Citizens
Committee for the Right to Keep and Bear Arms and created the Second
Amendment Foundation. Id. at 116.

283. McClure-Volkmer Act, § 1(b), 100 Stat. at 449 (codified as
amended at 18 U.S.C.A. § 921 (West 1976 & Supp. Nov. 1994)).

284. THE RIGHT TO KEEP AND BEAR ARMS, supra note 50.

285. Id. at viii.

286. 137 CONG. REC. H2852 (daily ed. May 8, 1991) (statement of Rep.
Rohrbacher).

287. 140 CONG. REC. H3059 (daily ed. May 5, 1994) (statement of Rep.
Hutto).

288. See, e.g., 139 CONG. REC. S16,315 (daily ed. Nov. 19, 1993)
(statement of Sen. Stevens); 139 CONG. REC. S16,309-10 (daily ed. Nov.
19, 1993) (statement of Sen. Dole); 139 CONG. REC. S15,507- 08 (daily
ed. Nov. 10, 1993) (statement of Sen. Baucus); 139 CONG. REC.
S15,451-52 (daily ed. Nov. 9, 1993) (statement of Sen. Boren); 137
CONG. REC. S9079 - 80 (daily ed., June 28, 1991) (statement of Sen.
Thurmond); 137 CONG. REC. H2872 (daily ed. May 8, 1991) (statement of
Rep. Stallings); 137 CONG. REC. H2868 (daily ed. May 8, 1991)
(statement of Rep. Stump); 137 CONG. REC. H2866 (daily ed. May 8,
1991) (statement of Rep. Slattery); 137 CONG. REC. H2863 (daily ed.
May 8, 1991) (statement of Rep. Armey); 137 CONG. REC. H2852 (daily
ed. May 8, 1991) (statement of Rep. Rohrabacher); 137 CONG. REC. 1697-
98 (daily ed. May 9, 1991) (statement of Rep. Orton); 136 CONG. REC.
S6748 -50 (daily ed. May 22, 1990) (statement of Sen. Heflin); 136
CONG. REC. S6751 (daily ed. May 22, 1990) (statement of Sen.
Kassebaum); 136 CONG. REC. S6752 (daily ed. May 22, 1990) (statement
of Sen. McClure); 135 CONG. REC. S333 -37 (daily ed. Jan. 25, 1989)
(statement of Sen. Symms).

289. ABC News/"Time" Forum, supra note 128.

290. 139 CONG. REC. S16,319 (daily ed. Nov. 19, 1993) (statement of
Sen. Murray).

291. Only a few legislators have taken the time to correct the
constitutional confusion. See, e.g., 139 CONG. REC. S15,440 (daily ed.
Nov. 9, 1993) (statement of Sen. Danforth); 139 CONG. REC. S15,442
(daily ed. Nov. 9, 1993) (statement of Sen. Chafee); 139 CONG. REC.
S15,443 (daily ed. Nov. 9, 1993) (statement of Sen. Simon); 137 CONG.
REC. H2837 (daily ed. May 9, 1991) (statement of Rep. Roukema); 137
CONG. REC. H2844-45 (daily ed. May 8, 1991) (statement of Rep.
Campbell).

292. Paul Bedard, Clinton a Boon to NRA, WASH. TIMES, July 6, 1993, at
A1 (discussing an NRA membership letter).

293. George Bush wrote an open letter to NRA members during the 1988
presidential campaign, noting his status (like Ronald Reagan's) as a
Life Member of the NRA and stating, "I've owned, used and respected
firearms for most of my life . . . .You can support my opponent and
give up the rights you cherish, or you can support me and maintain
your right to keep and bear arms." DAVIDSON, supra note 112, at 142.

Ronald Reagan spoke to the 1983 NRA convention and praised the group
for "not backing down 'one inch from defending the constitutional
freedoms that are every American's birthright.' " Drop Those Guns;
Pro-Gun Lobbying by the National Rifle Association, 239 NATION 573,
573 (1984). In 1984, Reagan told shooting editor Grits Greshham of
Sports Afield magazine that "[m]y position has always been clear. I
believe that law-abiding citizens have a right to bear arms." Reagan
on Guns, UPI, Feb. 3, 1984, available in LEXIS, News Library, UPI
File. The 1984 Republican platform declared that "Republicans will
continue to defend the constitutional right to keep and bear arms."
General News, UPI, Aug. 21, 1984, available in LEXIS, News Library,
UPI File. Even in announcing his late-coming support for the waiting
period bill named after his former press secretary, Reagan reminded
his audience that he was an NRA member and that his "position on the
right to bear arms is well known." The MacNeil/Lehrer NewsHour (PBS
television broadcast, Mar. 28, 1991), available in LEXIS, News
Library, Script File.

In 1976 Gerald Ford promised the NRA that, if elected, he would
"oppose any attempt to deprive law-abiding citizens of their
traditional freedom to own firearms." DAVIDSON, supra note 112, at 40.
Although Jimmy Carter ran on a platform that called for federal action
to control the manufacture, sale, and possession of handguns, and had
said that he would personally support registration of, and a national
waiting period for, the purchase of handguns, a 1976 press release of
his stated that he sought to "protect the rights of the 'vast majority
of hunters and other gun sportsmen [who] use their firearms
respectfully and responsibly.' " Id.

294. See supra notes 262-64 and accompanying text.

295. During the second debate of the 1992 presidential campaign,
Clinton said: "I support the right to keep and bear arms . . . . [B]ut
I believe we have to have some way of checking before handguns are
sold. I support the Brady Bill." Best Quotes from the Presidential
Debates, Gannett News Service, Oct. 20, 1992, available in LEXIS, News
Library, Wires File; see also Remarks on Legislation to Ban Assault
Weapons, 30 WEEKLY COMP. PRES. DOC. 957 (1994) ("I would never do
anything to infringe on the rights of sportsmen and women in this
country."); Clinton Campaigns for Weapons Ban in Letter to Hunters,
N.Y. TIMES, May 1, 1994, at A27 (reporting that an open letter to
hunters urged passage of a proposed ban on 19 semiautomatic
assault-style weapons, and offered assurances that the President, who
has been a hunter since age 12, would "not allow the rights of hunters
and sportsmen to be infringed upon").

296. See supra notes 128 -29 and accompanying text.

297. President Clinton, raised in Arkansas and steeped in the classic
rural gun rituals, may present a special case of this phenomenon.

298. John A. Farrell, Clinton Seeks a Covenant, BOSTON GLOBE, Jan. 25,
1995, at 1.

299. MACEDO, supra note 270, at 50 -51.

300. Macedo notes that "[l]iberals have a tendency to minimize what
they stand for and to evade their ultimate commitments." Id. at 50.
This reticence "grows out of a desire for widespread agreement, but
also flirts with a kind of liberal false consciousness." Id. at 51. He
charges that "[t]he embrace of liberal false consciousness is moved
not by principled respect or a desire to live by public reasons but by
fear of conflict and despair at the incapacity for reasonableness."
Id. at 67. President Clinton may be specially subject to this
phenomenon. The President's failure to speak out seems to fit with his
widely noted tendency to seek consensus at all costs. See, e.g., Aaron
Epstein & Owen Ullman, Clinton Choices Display His Zeal for Consensus,
MIAMI HERALD, Dec. 26, 1992, at A12 (discussing Clinton's appointments
to fill government posts).

[PLMerite]

"God" <god...@ziplip.com> wrote in message
news:d8c50250.03081...@posting.google.com...

> References (for article from Part 1)
>

(snip)

"The Right of the People to keep and bear arms shall not be infringed."

What part of that do you not understand?

...and what do you think you're going to do about it?

Come get 'em when you grow some nuts, G.O.D.

Regards, PLMerite

[Jeffrey C. Dege]

On Tue, 19 Aug 2003 05:12:18 GMT, PLMerite <stoc...@smokebombhill.com> wrote:
>
>"The Right of the People to keep and bear arms shall not be infringed."
>
>What part of that do you not understand?

The right of a citizen to bear arms, in the lawful defense of himself
or the state, is absolute. He does not derive it from the state
government, but directly from the sovereign convention of the people
that framed the state government. It is one of the "high powers"
delegated directly to the citizen, and "is excepted out of the
general powers of government." A law cannot be passed to infringe
upon or impair it, because it is above the law, and independent of
the law-making power.
- Cockrum v. State, 24 Texas 394 (1859)

--
Crime is not only a complete disavowal of the social contract, but also
a commandeering of the victim's person and liberty. If the individual's
dignity lies in the fact that he is a moral agent engaging in actions of
his own will, in free exchange with others, then crime always violates
the victim's dignity. It is, in fact, an act of enslavement. Your wallet,
your purse, or your car may not be worth your life, but your dignity is;
and if it is not worth fighting for, it can hardly be said to exist.
- Jeffrey Snyder

[Yardpilot]

"God" <god...@ziplip.com> wrote in message
news:d8c50250.03081...@posting.google.com...
> References

Huh. You couldn't get references to clean up dog shit.

[RD (The Sandman)]

god...@ziplip.com (God) wrote in
news:d8c50250.03081...@posting.google.com:

> References (for article from Part 1)
>
> 1. Adams v. Williams, 407 U.S 143, 150 -51 (1972) (Douglas, J.,
> dissenting).
>
> 2. Preferences throughout to "the gun lobby" and "gun-rights
> advocates" apply not to individual gun owners or National Rifle
> Association ("NRA") members, but solely to gun-rights litigators and
> leaders of the NRA and other gun-rights organizations. Many gun owners
> do not share the extreme views of the NRA. "The hard-line views of the
> NRA are crafted not from the majority of gun-owners, or even its
> members, but from its leadership and an activist core of 600,000
> members." JOSH SUGARMANN, NRA. MONEY, FIREPOWER AND FEAR 17 (1992).
> The overwhelming majority of gun owners are responsible, law-abiding
> men and women. They have many different reasons for wanting to own and
> use firearms:
>

Had to read no further than Josh Sugarmann.....

--
Sleep well tonight.........

RD (The Sandman)

http://home.comcast.net/~rdsandman

[Randy Sweeney]

Let's get this straight

The founding fathers, who had just led an armed rebellion against the crown,
feared tyranny, feared government in general, believed in individualism,
limited government by the consent of the governed, and individual rights.

Not to mention that a few of them were from states where legally disarmed
slaves were kept in bondage by their owners with guns.

You think these guys would build a government which was empowered to disarm
the individual citizen?

You so crazy!

[Two Bears]

god...@ziplip.com (God) wrote in message news:<d8c50250.03081...@posting.google.com>...health-care costs.

>
> 3. Bernard Levin, A Gun in Every Hand, THE TIMES (London), June 28,
> 1994, at 20. Offering its people far and away the easiest access to
> firearms of all industrialized western nations, the United States also
> boasts, by far, the highest murder rate per capita.

Oh Bull F..king Horse S..t !!!
Over **54 M I L L I O N** unarmed citizens killed, slaughtered,
murdered by tyrannical governments in CIVILIZED Europe in the 20th
century alone!!
The following is just a little taste of what happened:

http://www.guntruths.com/images/1ST_MMM_MARCH.gif

.....the result of the Wiemar's gun control, they installed Draconain
gun control in order to prevent Hitler's fledgling Nazi party from
arming itself. Worked real, well didn't it?

Just think of how nice it would have been for one of those women's
husband to have a sniper's rife like the one Sarah Brady bought her
son. But then again, those are the same sheeple husbands who let the
facists grab their guns in the first place.

Those who ignore history are doomed to repeat it.