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Posted: 2/20/2006 8:37:51 PM EDT
I. INTRODUCTION

There is a fundamental right to carry concealed weapons, including but not limited to handguns, for the purpose of personal self-defense. This right emanates from the specific rights protected by the Second, Fifth, Ninth and Fourteenth Amendments of the United States Constitution. The Second Amendment guarantees the right of the people as individuals to keep and bear arms. The Due Process Clauses of the Fifth and Fourteenth Amendments guarantee the right to self-defense, and the Ninth Amendment guarantees that the enumeration of certain rights of the people shall not be construed to deny or disparage other rights retained by the people. The right to carry concealed weapons for the purpose of self-defense emanates from the combination of the right to keep and bear arms and the right to self-defense and is also among the traditional "Rights of Englishmen" guaranteed by the Ninth Amendment.


II. THE SECOND AMENDMENT

The Second Amendment provides, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."[1] This amendment guarantees an individual right of free citizens to possess weapons, including firearms, which possess military utility.[2] The Second Amendment also guarantees the right to use firearms in [Page 152] lawful self-defense.[3] Although there is an ongoing debate between the proponents of the "individual right" and "collective right" schools,[4] this right should be upheld as an individual right to possess personal weapons with military utility.

The language of the Second Amendment can only reasonably be interpreted as guaranteeing an individual right. In United States v. Verdugo-Urquidez,[5] the Court held that the phrase "the people" as used in the Constitution is a term of art.[6] "The people" protected by the Fourth Amendment,[7] the Assembly Clause of the First Amendment, and the Second Amendment,[9] are the class of persons who are part of the national community or who have developed sufficient connection to this country to be considered part of the national community.[10] The Assembly Clause and the Fourth Amendment guarantee the rights of people and have been incorporated into the Due Process Clause of the Fourteenth Amendment. Therefore, the Assembly Clause and the Fourth Amendment limit state governments to the same extent as the Federal government.[11] Because the people protected by the Second Amendment are the same people protected by the First and Fourth Amendments, the Second Amendment logically protects an individual's right to keep and bear arms and has been incorporated into the Fourteenth Amendment to protect this right from intrusion by state governments as well as by the Federal government.[12]

Grammatical study of the Second Amendment confirms the "individual right" reading of the Second Amendment. Two leading grammarians, A.C. [Page 153] Brocki, Editorial Coordinator of the Office of Instruction of the Los Angeles Unified School District, and Roy Copperud, retired Professor of Journalism at the University of Southern California, were consulted by author J. Neil Schulman for an analysis of the meaning of the language of the Second Amendment.[13] Both agreed that the first phrase of the Amendment referring to "[a] well-regulated Militia" is a dependent clause stating the reason the right exists. The second phrase, which states that "the right of the people to keep and bear Arms shall not be infringed," is the main body of the sentence, describing what the right is ("to keep and bear arms") and who possesses the right ("the people").[14] Both agreed that the language used in the Amendment had the same meaning in 1787 as it does today.[15] Professor Copperud further stated that the Amendment could have been written in Twentieth-Century usage¾"Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed"¾and have exactly the same meaning as the language actually used by the Founders.[16] Thus, the "individual right" interpretation of the Second Amendment is the only interpretation consistent with the meaning of the Amendment's language. The Amendment's reference to a "well-regulated Militia" is merely a declaration of why the right of the people to keep and bear arms is guaranteed.

The statement of a purpose for the existence of a right or power does not in itself constitute a limit on the exercise of that right or power. The Constitution grants Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."[17] This clause (the "Copyright Clause") declares that the purpose of copyrights is to promote the progress of science and the useful arts. This does not mean, however, that a work must have scientific or artistic merit to qualify for copyright protection. The Supreme Court has held that even as humble a work as a circus advertising poster is entitled to copyright protection.[18] The Fifth and Ninth Circuits have held that even obscene works, which by definition lack artistic or scientific merit when taken as a whole, are entitled to copyright protection.[19] The [Page 154] copyright laws promote the progress of science and the useful arts by protecting the rights of all authors in their writings. Whether the individual work in question in fact has scientific or artistic merit is irrelevant to its copyright protection. Likewise, the Second Amendment's reference to promoting a "well-regulated Militia" should be read as merely stating why the right exists, not as a substantive limitation on the right.

Analogously, the Fifteenth[20] and Nineteenth[21] Amendments speak of the "right of citizens" to vote. The right to vote is also an individual right. The sole difference between a "right of citizens" and a "right of the people" is the application to legally resident aliens.[22] Although legally resident aliens, by definition, are not citizens, they have sufficient connection to the United States to be included among the "People of the United States."[23] Thus, although legally resident aliens do not enjoy "rights of citizens" (such as the right to vote), they do enjoy "rights of the people" (such as peaceable assembly, security against unreasonable searches and seizures, and the right to keep and bear arms).[24]

Courts interpreting state constitutions have almost always made the same interpretation of the phrase "right of the people" when it occurs in state constitutions. The North Carolina Constitution provides, "The right of the people to keep and bear arms shall not be infringed . . . ."[25] This provision, which was clearly copied from the Second Amendment, has been interpreted as guaranteeing an individual right to possess personal weapons with military utility (e.g. rifles, shotguns and handguns). [26] The Michigan Constitution's [Page 155] guarantee that "[e]very person has a right to bear arms . . ."[27] guarantees an individual right to own firearms to both citizens and legally resident aliens.[28] The Colorado Supreme Court has also held that the phrase "[t]hat the right of no person to keep and bear arms . . . shall be called in question,"[29] guarantees an individual right to own firearms to both citizens and legally resident aliens.[30] The Vermont Constitution's guarantee that "[t]he people have a right to bear arms for the defense of themselves and the State,"[31] has been interpreted as guaranteeing an individual right to carry a revolver for self-defense.[32]

In United States v. Miller,[33] the district court had dismissed an indictment for interstate shipment of a short-barreled ("sawed-off") shotgun on the basis that the National Firearms Act of 1934 violated the Second Amendment.[34] In reversing the district court, the Supreme Court declared:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within the scope of judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[35]

In support of this declaration that a weapon must have military utility to fall within the protection of the Second Amendment, the Court cited Aymette v. The State.[36] The Court cited no other authority to support this proposition.[37] Hence, an understanding of the holding of Aymette is crucial to understanding the holding of Miller.

In Aymette, the Tennessee Supreme Court interpreted the Tennessee Constitution's arms clause[38] as guaranteeing an individual right to possess personal weapons with military utility, so that militia members would be accustomed to the use of arms and would have arms of their own to bring if [Page 156] necessity should arise for mobilizing the militia.[39] By citing the Tennessee Supreme Court's interpretation of the Tennessee Constitution and no other authority, the Court implicitly indicated that it was interpreting the Second Amendment in the same manner as the Tennessee Court interpreted Tennessee's arms clause: as an individual right to own personal weapons with military utility. Thus, the prohibition on owning sawed-off shotguns is not prima facie unconstitutional because, although a shotgun is indeed a personal weapon, it is not within the scope of judicial notice that a sawed-off shotgun has military utility.[40]

When reviewing Miller, it should be noted that the only evidence the Court had of the military utility of a sawed-off shotgun is that which could be taken through judicial notice.[41] The Court stated that it was not within the scope of judicial notice that this kind of weapon is ordinary military equipment.[42] Thus, although shotguns in general have military utility and, thus, are weapons whose possession is protected by the Second Amendment,[43] the presumption that statutes have a rational basis and are Constitutional meant that the Court presumed that Congress had a rational basis for believing that sawed-off shotguns, unlike long-barreled shotguns, lack military utility and are particularly suited for criminal purposes. The lack of an appearance by the appellees meant that no arguments were made in support of the proposition that a sawed-off shotgun has military utility.[44]

Some courts have erroneously cited Miller for the proposition that the Second Amendment protects a purely "collective" right and does not protect any individual right at all.[45] This reasoning is mistaken. If the Court had held in Miller that the Second Amendment right is a purely "collective" right, Miller would not have had standing to assert a Second Amendment challenge, and the issue of whether short-barreled shotguns have military utility would have been irrelevant. The Supreme Court has never dismissed a Second Amendment challenge on the basis that an individual person lacks standing to raise a Second Amendment challenge and has never described the right guaranteed by the [Page 157] Second Amendment as a "collective right."[46] In Lewis v. U.S.,[47] the Court implicitly accepted that the petitioner, an individual person, had standing to assert a right under the Second Amendment by not dismissing the appeal on the basis that Lewis lacked standing to assert Second Amendment rights.[48] Instead, the Second Amendment does guarantee an individual right to possess personal weapons. Therefore, the Amendment's reference to the Militia simply means that weapons must have some military utility for their possession to be protected by the Second Amendment.

In addition to the fact that the "collective right" interpretation blatantly misinterprets Miller and other relevant Supreme Court rulings, another flaw in the "collective right" argument is that it would render the Second Amendment meaningless. If the Second Amendment guarantees only a "collective right," which no individual person has standing to assert, then no individual person would ever have standing to assert a Second Amendment challenge. This would render the Second Amendment meaningless. 250 million zeroes add up to zero. Imagine the effect if the Fourth Amendment were declared to be a purely "collective right" because it too is a "right of the people." Search and seizure cases would certainly be easier to resolve. The prosecution would always win because no defendant would have standing to assert a Fourth Amendment challenge to a search or seizure. But because a right which no one can assert is a right which no one really has, this simplicity would be purchased at the cost of denying every American the protection of the Fourth Amendment, and that would be wrong. This fundamental absurdity of the "collective right" position is why one author has said,

erious people [the 'individual right' school] begin with a constitutional understanding that declines to trivialize the Second Amendment or the Fourteenth Amendment, just as they likewise decline to trivialize any other right expressly identified elsewhere in the Bill of Rights. It is difficult to see why they are less than entirely right in this unremarkable view. . . . [T]he essential claim advanced by the NRA [National Rifle Association] with respect to the Second Amendment is extremely strong.[49]

Another position argued by the proponents of the "collective right" interpretation of the Second Amendment is that the Second Amendment [Page 158] protects only the right of states to maintain a militia if they choose to, and that this state militia is represented in these times by the National Guard. This misinterpretation is blatantly wrong. First, the National Guard is not the Militia. Although National Guard members (along with all other able-bodied males) are members of the Militia,[51] they are first and foremost members of the United States Armed Forces, despite the fact that state governors are also given some authority to call upon National Guard units.[52] Unlike the Militia, which may only be brought under Presidential command when Congress acts to "call forth the Militia,"[53] the National Guard is under Presidential command at all times because it is a branch of the United States Armed Forces. The President may exercise this command even over the objections of the state's governor.[54] This is why Presidents Eisenhower and Kennedy could order the Arkansas and Alabama National Guards, respectively, to implement desegregation orders and President Reagan could order the Minnesota National Guard to train in Honduras. These executive actions were done over the objections of the states' governors and without prior action by Congress to call these National Guard units into Federal service.

Further, the "states' right" position completely misstates the intention of the Founders and the meaning of the Second Amendment. The Founders considered a select militia consisting of a limited group of citizens (such as the National Guard) as undesirable as a standing army.[55] They meant the general citizenry when they referred to the Militia. When Patrick Henry described the Militia as "our ultimate safety," he said that "the great object is that every man be armed . . . every man who is able may have a gun."[56] Tench Coxe, a prominent federalist and correspondent of Thomas Jefferson and James Madison,[57] in his "Remarks on the First Part of the Amendments to the Federal Constitution," explained the purpose of the Second Amendment as providing that "the people are confirmed . . . in their right to keep and bear their private [Page 159] arms."[58] Coxe sent a copy of this article to James Madison, who commended Coxe for his explanation of the meaning of the Bill of Rights.[59] The United States Code reflects the Founders' view of the Militia by establishing that every male citizen between the ages of 18 and 45 is a member of the Militia.[60] As the Court explained in Miller.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-civilians primarily, soldiers on occasion. . . . [T]hese men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. . . . [T]he militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms.[61]

Thus, the Second Amendment, at a minimum, protects the right of Militia members (e.g. "all adult male inhabitants") to possess personal weapons which have military utility and thus are suitable for use if and when the Militia is mobilized. This is why the Court held in Miller that a law outlawing short-barreled shotguns is not prima facie unconstitutional. It is not within the scope of judicial notice that such weapons possess military utility and thus are Militia weapons whose possession is protected by the Second Amendment.[62]

By contrast, the Militia would be legislated out of existence if private possession of personal weapons with military utility could be outlawed.[63] This is precisely what the Second Amendment prohibits both Federal and state governments from doing. The right to keep and bear arms is not limited to members of the Militia. All free citizens have the right to possess personal weapons[64] with military utility[65] (e.g. rifles, shotguns, and handguns) to ensure that the Militia shall be well-regulated (e.g. well-equipped) and that Militia members shall be well-acquainted with the use of weapons.[66] Further, states do not have the discretion not to have a Militia. Congress has the power to call [Page 160] forth the Militia, and states would impermissibly deprive Congress of this power if they could forbid free citizens the right to possess arms with military utility.[67] The Militia system is based on the principle of the assize of arms.[68] This refers to the general obligation of all adult male inhabitants to possess arms.[69] Because the Militia consists of the general citizenry, the Second Amendment's reference to "the Militia" is synonymous with its reference to "the people," and the right to keep and bear arms is a right enjoyed by individual citizens.

The Second Amendment was interpreted as guaranteeing an individual right which has been incorporated into the Fourteenth Amendment so as to apply to the states as well as the Federal government in the seminal case of McKellar v. Mason.[70] In this civil case the plaintiff was shot by the defendant while he was apparently attempting to make a forced entry into the defendant's home.[71] The plaintiff appealed from a judgment for the defendant.[72] The Louisiana Court of Appeals held that the Second Amendment guarantees the right to keep and bear arms, including the right to use them for their intended purposes such as self-defense.[73] Although the Louisiana Court of Appeals did not directly address the incorporation issue, the fact that the Second Amendment was cited as a substantive limitation on a state court in state-law causes of action (assault and battery) indicates that the Second Amendment has been incorporated into the Fourteenth Amendment so as to limit state governments as well as the Federal government.

The Supreme Court has repeatedly referred to the right to keep and bear arms as one of the individual rights of Americans. In Scott v. Sandford,[74] the Court listed the right to keep and carry arms as one of the rights, privileges and immunities guaranteed to United States citizens by the Constitution. As the Court explained,

For if they [African-Americans] were so received [as United States citizens], and entitled to the privileges and immunities of citizens . . . t would give to persons of the [N]egro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased . . . and it would give them the full [Page 161] liberty of speech in public and in private upon all subjects upon which its own citizens may speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.[75]

The rights of citizens to travel among the states, freedom of speech, peaceable assembly, and to "keep and carry arms wherever they went" are just as valid today as they were when Scott was decided in 1856. The only difference is that, since the enactment of the Fourteenth Amendment, all persons born in the United States are United States citizens and thus entitled to exercise the rights of citizens, regardless of race, color, or previous condition of servitude.[76]

In more recent decisions, the Court has repeatedly referred to the right to keep and bear arms, guaranteed by the Second Amendment, as being encompassed by the Fourteenth Amendment. In Planned Parenthood of Southeastern Pennsylvania v. Casey,[77] the Court enumerated the right to keep and bear arms, along with other individual rights such as the freedom of speech, as one of the individual rights protected by the Due Process Clauses from infringement by the Federal and state governments.[78] Although abortion was the issue directly presented in Casey, this reference to the right to keep and bear arms as an individual right protected under the Due Process Clauses further demonstrates that the Second Amendment right is an individual right, and that this right has been incorporated into the Due Process clause of the Fourteenth Amendment so as to apply to the states as well as the Federal government. Likewise, in Printz v. United States,[79] Justice Thomas pointed out in his concurrence that the Second Amendment's text suggests that it is a personal right and that the weight of evidence strongly supports this interpretation.[80] [Page 162]


III. THE FIFTH AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSES

The Due Process clause of the Fifth Amendment protects the right to self-defense against felonious assault.[81] Weapons which have utility for self-defense are constitutionally protected. In Patsone v. Pennsylvania,[82] the Court upheld a Pennsylvania statute[83] which forbade aliens to kill any wild bird or animal, and to that end made it illegal for aliens to possess rifles and shotguns, although they were allowed to possess handguns.[84] States may limit hunting to civilians, and banning possession of rifles and shotguns by aliens was reasonably designed to prevent them from hunting. Upholding the statute, the Court noted, "The prohibition does not extend to weapons such as pistols that may be supposed to be needed occasionally for self-defense."[85] Aliens are not members of the Militia (unless they have declared an intention to become citizens).[86] The Court's concern with the question of whether aliens could obtain weapons which might be needed for self-defense would have been unnecessary if the only right to weapons protected by the Constitution were the Second Amendment right to possess weapons which Militia members need to fulfill their duties.

[The Court] thus assumed that even a foreigner had the right to self-defense and thus to possess the instrument regarded as commonly used and appropriate therefor (that is, the pistol). . . . Patsone, in essence, assumed that citizens and foreign-born residents alike could not be deprived of the right to possess pistols for self-defense."[87]

Thus, the Fifth and Fourteenth Amendments guarantee the right to possess handguns for the purpose of self-defense.

In Kellogg v. City of Gary,[88] the Indiana Supreme Court held that the Due Process Clause of the Fourteenth Amendment prohibited the City of Gary from preventing the issue of concealed weapons permits to Gary residents by refusing [Page 163] to distribute applications for the permits.[89] Furthermore, the Court upheld an award of damages under 42 U.S.C. § 1983 against the City of Gary for refusing to distribute the applications for concealed-weapons permits.[90] The Due Process Clause of the Fourteenth Amendment prohibits state actions which are arbitrary, capricious, and lacking a reasonable basis.[91] The evidence showed that out of the 600-800 permitees in Lake County, where Gary is located, only one had committed any crime. This offense was forgery, which did not involve the use of a weapon.[92] Indeed, there was testimony of a plaintiff class member that crimes against his person and property had been thwarted because he had been able to legally carry a handgun.[93] Because there is a total disconnect between lawful carrying of concealed handguns and crimes committed with handguns, and because handguns in the hands of honest citizens in fact prevent crimes,[94] the city's attempt to prevent people from carrying concealed weapons was arbitrary, capricious, and lacking a reasonable basis and thus constituted a due process violation.[95]

The fact that issuing concealed weapons permits will in fact lead to fewer crimes is a nationwide phenomenon and does not hold true only in Lake County, Indiana. Florida leads the states in licensing honest gun owners to carry concealed weapons. Thus, Florida's experience provides the most useful data on the question of whether licensing honest citizens to carry concealed weapons will reduce crime. In Florida, an applicant is entitled to a concealed carry permit if the applicant is at least 21, does not suffer from a physical disability which interferes with safe [Page 164] handling of a firearm, has not been convicted of a drug offense or felony, and has not been convicted of driving under the influence two or more times within the previous three years. The applicant must also successfully complete an NRA-certified firearms safety course or state-certified firearms safety course.[96] The license shall be revoked if the licensee is convicted of a felony, a second DUI within a three year period, a drug offense, or develops a physical disability which interferes with safe handling of a firearm.[97] Florida has issued over 250,000 concealed-carry permits under this section, which was enacted in 1987.[98]

As in Lake County, Indiana, Floridians licensed to carry concealed weapons are an extraordinarily law-abiding group. Only 19 licenses out of over 250,000 have been revoked for a firearms-related offense, whether felony or misdemeanor during the seven year period of 1987¾94.[99] This works out to an annual rate for all offenses involving firearms of 1.08 per 100,000 per year among concealed weapons permittees. To put this number in perspective, this would translate into Cincinnati, Ohio (population approximately 350,000) having 3.8 offenses of any type (felony or misdemeanor) involving a firearm per year if everyone in the city qualified for and obtained a concealed weapons permit. In addition, there has not been one incident in which a license holder had his gun taken away by a criminal, shot someone unlawfully or by accident, or was killed defending himself.[100] Even Florida state Senator Ron Silver, a supporter of Handgun Control, Inc. and the leading opponent of the Right to Carry Law when it was proposed in 1987, has admitted that the Right to Carry Law has worked "pretty well."[101] Clearly, honest citizens who carry concealed weapons are not the ones responsible for America's felonies. Because of this total lack of identity between honest citizens and persons who use firearms for criminal purposes, there is no rational basis for the belief that forbidding honest citizens to carry weapons for self-defense does anything to reduce crime. This action is thus arbitrary, capricious, and lacking a reasonable basis; thus, it is unconstitutional.[102]

John R. Lott, Jr. and David B. Mustard have found that allowing honest citizens to carry guns for self-defense results in fewer violent crimes.[103] Laws which allow honest citizens to legally carry concealed handguns motivate criminals to switch from violent offenses against persons (e.g. murder, rape, robbery) to nonviolent offenses (e.g. burglary of unoccupied houses, shoplifting, and car theft).[104] Although Lott and Mustard's critics have condemned their [Page 165] motives and, in some cases, made death threats against them,[105] none has even attempted to refute any of Lott and Mustard's arguments, thus exposing the intellectual bankruptcy of "gun control" arguments.[106]

Since Florida has been the nation's leader in licensing honest citizens to carry concealed weapons, examining Florida's experience is important to understanding the effects of concealed carry. In 1987, when Florida adopted its current concealed-weapons law, Florida's homicide rate was 11.4 persons per 100,000. In 1993, Florida's homicide rate declined to 8.7 persons per 100,000.[107] During this same period, the national homicide rate increased from 8.2 to 9.3 persons per 100,000.[108] Thus, allowing honest citizens to carry concealed weapons saves lives. During the same period (1987-93), the incidence of rape went up 14.4% while in Florida the rate went up only 2.9% and started declining in 1993.[109] Although Florida's rape rate went up somewhat, Florida women avoided the skyrocketing rape rates that the rest of the country experienced. Allowing honest women to carry concealed weapons thus prevents rapes.

Much has been made of a recent string of murders of foreign tourists in Florida. The reason Florida's crooks have been targeting foreigners is illuminating:

TV 'news magazine' programs visited juvenile detention facilities in south Florida to find out why violent juvenile predators were targeting foreign tourists. . . . With total candor, the jailed juveniles said they knew that tourists didn't have guns. Since Florida allows law-abiding people to carry guns, these young criminals were afraid to attack residents. Tourists are considered easy marks . . . they are unarmed and defenseless. . . .

From the mouths of these young criminals came the strongest reason for allowing law-abiding people to carry firearms-protection. These juveniles may be criminals but they're not stupid-they don't want to be shot and so they avoid people who may be armed and might defend themselves.[110] As another example of how an armed citizenry deters crime, the Orlando, Florida Police Department trained over 6,000 women in the use of handguns in 1966, after a series [Page 166] of brutal rapes.[111] The number of rapes in Orlando declined more than 80% in 1967.[112]

As a demonstration that disarming honest citizens increases violent crime, the District of Columbia banned the possession of handguns (grandfathering in those already legally possessed) in 1977.[113] In 1976, the year before this law took effect, Washington had the seventh highest rate of violent crime of any city in the nation.[114] Six years later, Washington took the lead and became America's most violent city.[115] Then-Police Chief Maurice Turner remarked, "What has the gun-control law done to keep criminals from getting guns? Absolutely nothing. . . . City residents ought to have the opportunity to have a handgun."[116] In fact, Washington's gun-control law is worse than useless. The gun control law reduced the number of felons killed in the course of felonies by two-thirds[117] and increased crime by disarming victims. One author has summed it up well, "Gun Control = Victim Disarmament & Increases Violent Crime!"[118]

As already discussed, the Due Process Clauses protect the right to self-defense[119] and prohibit arbitrary and capricious laws and other government actions.[120] Thus, the Due Process Clauses prohibit arbitrary and capricious laws and government actions which limit the ability of people to defend themselves. Laws intended to prevent honest citizens from carrying concealed weapons fall into this category. Several court opinions state the reality that these laws were passed to prevent people from exercising their right to self-defense and instead force them to rely on peace officers for what protection they might happen to receive.[121]

As an example of judicial opinions which state the reality that laws prohibiting carrying concealed weapons are intended to prevent people from exercising the right to self-defense, the Tennessee Supreme Court said of the defendant in Andrews v. State,[122] who had been convicted of carrying a [Page 167] "concealable" weapon, "The law of the land gave him ample protection, if he had chosen to seek its aid by authorizing, on proper application, the arrest of the parties, and sureties to keep the peace, or confinement in prison, to prevent the threatened injury."[123] One wonders how many murderers, rapists, and robbers actually give their intended victims notice of their intent in sufficient time to seek the arrest of the party or sureties to keep the peace. The dissent in Andrews had a more realistic view of the effect and intentions of the concealed weapons statute:

It was once the policy, too, of our State Government to foster a martial spirit among the people, and to train them to the use of arms, not only for the purpose of national defenst, but also in cases of necessity, for the defense of their persons. The tendency now appears to be the other way, and passive obedience and slavish submission to wrong and outrage would seem to be the growing spirit of the times. . . . I can not approve legislation which seems to foster and encourage a craven spirit on the part of those who are disposed to obey the laws, and leaves them to the tender mercies of those who set all law at defiance.[124]

Both the majority and the dissent agreed that the fundamental purpose of laws outlawing carrying weapons (whether openly or under concealment) is to prevent people from defending themselves. Because the right to self-defense is guaranteed by the Fifth and Fourteenth amendments, laws intended to prevent the exercise of this right violate the Fifth and Fourteenth Amendments. Weapons are the tools needed to exercise the right to self-defense, and prohibiting the carrying of the tools necessary to exercise the right is equivalent to prohibiting the exercise of the right. It is well-established that governmental actions which are intended to prevent the exercise of a Constitutionally protected right are per se unconstitutional.[125] This is true whether the action's effect in preventing the exercise is blatant, as was an ordinance prohibiting people from putting up political signs at their homes,[126] or subtle, as was an ordinance which ostensibly was intended to protect the public health, but was in truth intended to prevent the adherents of a particular religion from opening their temple and practicing their religion (which required animal sacrifice).[127]

Some have argued that the presence of police forces makes the right to self-defense obsolete. This argument is of extremely dubious validity. Even where governments provide a police department, it is well-established that they have [Page 168] no duty to provide protection from any specific threat and can not be held liable for damages caused by criminal assault,[128] no matter how unreasonable the conduct or nonfeasance of the police force was. In the seminal case Warren v. District of Columbia,[129] the plaintiffs, three women and a four-year-old child, called for police assistance when two men broke into the house in which they were staying. While the men were sexually assaulting one of the women, the other women called for police assistance, informed the dispatcher that the house was being burglarized, and crawled out onto the roof.[130] A police cruiser arrived within minutes of the call.[131] One officer drove the cruiser through the alley behind the house without stopping, leaning out the window, or otherwise doing anything to determine what was happening.[132] The other officer knocked on the front door of the house and then left when no one answered.[133] He then reentered the cruiser, and both officers drove away from the scene five minutes after they arrived.[134] The two women then crawled back in from the roof, heard that their companion was still being raped, and called the police again, informing the dispatcher that the intruders were still in the house.[135] The Metro Police did nothing in response to this second call for assistance.[136] In the hope that police officers had finally arrived, the two women who had not yet been assaulted called out to announce their presence, and the intruders then found them.[137] The intruders then spent the next fourteen hours repeatedly sexually assaulting the three women.[138] The Metro Police never made any response to the second call for aid.[139] The District of Columbia Court of Appeals followed the traditional analysis, holding that the District had no liability whatsoever for the criminal acts of third persons, regardless of whether or not the police department's response was reasonable.[140]

Even if courts were to accept the idea that governments do have a duty to make reasonable efforts to protect persons from criminal assault, this would not negate the right to self-defense. As one author has said, [Page 169]

It is extremely controversial to say that anything in the Constitution guarantees citizens benefits from government, including individual protection. Disarmament [of civilians] would have us take the more troublesome leap past guaranteed benefits directly to forced dependency. . . . Would it satisfy us to be forced to rely on government for our economic security in the form of a dole check, a system where the accumulation of private wealth was prohibited in favor of collective measures? . . . We may find it difficult to explain how forced reliance on government for individual security is constitutionally more palatable than forced reliance for less substantial human concerns.[141]


IV. THE NINTH AMENDMENT

The Ninth Amendment guarantees that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."[142] It is not clear precisely what are the rights referred to in the Ninth Amendment. The meaning of this provision has been hotly disputed, though the language of the Amendment suggests that these rights are of a nature comparable to the rights which are enumerated. [143] These rights are retained by the people, because words were considered inadequate to define all of the rights which people should possess in a free society.[144] Justice Goldberg, in Griswold v. Connecticut,[145] observed that the Amendment "was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected."[146] Justice Goldberg suggested that the right of privacy in marriage is among the other rights referred to in the Ninth Amendment.[147] Political Freedom and the right to attend criminal trials have also been suggested as being among the rights in the Ninth Amendment.[148] [Page 170]

The right of self-preservation, including the right of self-defense, has been suggested to be within the protection of the Ninth Amendment.[149] Thus, although some courts have refused to hold that the Ninth Amendment protects a right to possess firearms,[150] laws which restrict the ability of law abiding citizens to possess firearms for the purpose of self-defense could be said to violate the Ninth Amendment.

Another common interpretation of the Ninth Amendment is that it protects rights which were recognized at common law as being among the "fundamental rights of Englishmen." The common law, as described in Blackstone's Commentaries, has been carried into American jurisprudence.[151] One such right protected at common law was the right to self-defense and the right to possess and carry weapons for defensive purposes.[152] Hobbes described the right to self-defense as a fundamental natural right of which persons can not justly be deprived by any law or covenant.[153] Blackstone listed self-defense and the right to carry weapons for self-defense as one of the fundamental rights of Englishmen.[154] Blackstone further described the right to self-defense as "the primary law of nature, so it is not, nor can it be in fact, taken away by the law of society."[155]

The common law in England upheld the right to carry weapons for self-defense. Although religious dissenters were not members of the Militia and thus had no right to possess militia weapons, even Catholics were guaranteed the right to possess weapons suitable for personal self-defense.[156] Even an Irishman enjoyed the right to carry a concealed revolver for self-defense.[157] The fact that even such "suspect (to the British) classes" as Catholics and Irishmen enjoyed the right to carry weapons for self-defense identifies this right as even more fundamental than the right to vote, which was withheld from religious [Page 171] dissenters in Great Britain until well into the Nineteenth Century. American common law was in accord with the English common law. It was considered normal for civilians to carry pocket pistols for protection while traveling.[158] Because it was considered such a fundamental right at common law,[159] the right to carry concealed weapons for the purpose of self-defense is among the "Rights of Englishmen" incorporated into the Ninth Amendment.

Perhaps not every right recognized under the common law of the Eighteenth Century can be included under the protection of the Ninth Amendment, but those rights which are just as necessary and useful today as then certainly should be. Given late Twentieth Century crime rates, the right to carry weapons for self-defense is at least as important as it was two hundred years ago.


V. SUBSTANTIVE DUE PROCESS

The Due Process clauses of the Fifth and Fourteenth Amendments protect not only the rights specifically guaranteed by the Constitution but also those which are fundamental to the concept of ordered liberty.[160] The scope of this liberty includes the right to teach languages other than English in elementary schools,[161] the right to send one's children to non-public schools,[162] the right to use contraceptives whether or not the users are married,[163] and the right to an abortion whether or not the pregnancy poses a threat to life or health.[164] All of these rights sweep far beyond the literal text of the Constitution.

"pecific guarantees in the Bill of Rights have penumbras, formed by emanations from [these] guarantees that help give them life and substance."[165] The Second Amendment guarantees the right to keep and bear arms. The Fifth and Fourteenth Amendments guarantee the right to self-defense. The penumbra of these emanations combines these rights to form the right to carry weapons ("bear arms") for the purpose of self-defense. Because each individual component is Constitutionally guaranteed, the combination is Constitutionally [Page 172] guaranteed if the resulting liberty can be described as fundamental to the concept of ordered liberty.

The right to self-defense is fundamental to the concept of ordered liberty. It is recognized and always has been recognized in all jurisdictions in the United States.[166] With the exception of the "castle doctrine," [167] the scope of the right to self-defense is just as broad outside the home as it is in the home.[168] Because weapons are the tools needed to exercise the right to self-defense, and the right to self-defense is just as broad outside the home as it is in the home, the right to possess and carry weapons must be just as broad outside the home as in the home.

In Roe v. Wade,[169] the Court rested its holding that the Due Process Clause of the Fourteenth Amendment protects a right to abortion in part on the fact that abortion during the first two trimesters poses less of a threat to the mother's life than continuation of the pregnancy.[170] Although certain uninformed critics have implied otherwise,[171] the reality is that a felony victim who resists by means of a firearm is far less likely to be killed or injured than a victim who does not resist at all, or who resists by means other than a firearm.[172] Victims who did not resist at all were injured in 25% of robberies and 27% of assaults.[173] Those who resisted through the use of firearms were injured in only 17% of robberies and 12% of assaults.[174] Rape victims who resist by means of a firearm are less likely to suffer the completed offense than those who do not resist or resist by other means.[175] Further, there is a much lesser social interest served by outlawing carrying concealed weapons than would be served by outlawing abortion. Even in Roe, the Court acknowledged that there is a compelling state interest in protecting the life of the fetus beginning at the point of viability.[176] By contrast, no social interest is served by protecting the lives of felons at the [Page 173] expense of the lives of their victims.[177] In fact, at common law, killing a felon during the commission of a felony was seen as a social benefit rather than something to be prevented.[178] Thus, laws regulating (or forbidding) carrying concealed weapons are more suspect and entitled to less deference than laws regulating (or forbidding) abortion. Because carrying a concealed handgun gives the crime victim a better chance of escaping unscathed than does submission to the crime, and there is no compelling interest served by preserving the lives of felons at the expense of their victims, the Due Process Clauses protect the right to carry and use handguns for personal protection. Similarly, the Due Process clauses protect the right to an abortion prior to viability because the abortion poses less of a threat to the mother's health than continuation of the pregnancy prior to viability and no compelling state interest is served by preserving fetal life prior to viability.[179]

Some have implied that, even though carrying handguns is an effective deterrent to crime and gives the victim a better chance of escaping alive, it is inherently wrong to respond to violent crime with violence. Members of different religions, and even members of the same religion, have different views on this question. Judaism, for example, not only allows but actually requires self-defense. The Talmud declares, "And the Torah says, 'If someone comes to kill you, arise quickly and kill him. . . .'"[180] The Talmud not only requires self-defense, but also requires that bystanders use deadly force to prevent other innocent persons from being murdered or raped if they are in a position to prevent it.[181] Christ, in urging His followers to be prepared for the Final Judgment, urged them to follow the example of a homeowner who, if he knew when the thief was coming, would keep a watchful eye and not allow his house to be broken into.[182] Further, when Christ gave His final instructions to the Apostles, He told them that they would need to fend for themselves when He was no longer available to lead and protect them. In part, He told them, "And let him who has no sword sell his tunic and buy one."[183] The Roman Catholic Church has canonized St. Gabriel Possenti as the patron saint of handguns.[184] He is known for single-handedly preventing a gang of mercenaries from [Page 174] assaulting a young woman and driving them out of town, armed with a handgun.[185] In contrast to these traditions, some religions, such as the Society of Friends ["Quakers"], advocate pacifism.

When trained theologians and philosophers are unable to reach a consensus on a moral issue, the judiciary is in no position to speculate as to the answer, and states have no right to adopt one theory and override the rights of citizens which are at stake, especially when the asserted "state interest" is one which has never been recognized at common law.[186] Because there is no general moral consensus that self-defense is wrong, because the right to self-defense is well established in the common law, and because there is no social interest in preserving the lives of felons at the expense of the lives of their victims, states have no right to violate the Constitutional rights of honest citizens to carry concealed weapons for self-defense on the basis of the belief that self-defense is somehow "wrong."

There is no difference in principle between a law prohibiting the carrying of a weapon openly and a law prohibiting the carrying of a weapon concealed.[187] Therefore, the right to carry weapons for purposes of self-defense naturally includes the right to carry these weapons concealed. Concealment of a weapon offers a significant tactical advantage, especially to a person victimized by a surprise attack.[188] Carrying a weapon openly makes it easier for an attacker to grab it before the carrier can draw it. This is why almost 20% of police officers, who typically carry their weapons openly, who are killed on duty are shot with their own weapons.[189] This is also why many police officers carry concealed weapons as backups for their service weapons.[190] Carrying a concealed weapon offers a significant tactical advantage because an attacker cannot reliably locate and grab for the weapon before the victim can draw it. For this reason, attackers wrest guns from the hands of civilians (who almost always carry their weapons concealed) in fewer than 1% of attacks.[191] The right to carry weapons for self-defense implies the right to carry them in the manner most consistent with defensive utility¾concealed. [Page 175]


V. POLICE POWER

No Constitutional right is absolute. For example, the right to free speech does not extend to falsely shouting "Fire!" in a crowded theater.[192] Likewise, the right to carry concealed weapons can be regulated to promote legitimate compelling purposes.

States have inherent authority to make laws to promote public safety.[193] Even the exercise of Constitutionally protected rights can be regulated to this end, provided that the law in question can reasonably be said to promote public safety and is not an attempt to destroy the right under the guise of regulation. For example, the Indiana Court of Appeals upheld Indiana's statute requiring a permit to carry a concealed handgun with the proviso that self-defense is a right guaranteed by the Indiana Constitution and thus is a per se proper reason for carrying a handgun.[194] The Court of Appeals rejected the argument that licensing authorities had discretion to decide if applicants had "enough need" to carry a weapon for self defense.[195] Licensing of persons to carry concealed weapons can legitimately promote public safety in two ways: first, by ensuring that the licensee is not under disability from possessing firearms; and second, by requiring licensees to pass a firearms safety course to ensure that persons licensed to carry handguns are capable of safely handling a handgun.

The Florida statute[196] constitutes legitimate regulation of the right to carry concealed weapons because it is reasonably designed to prevent felons and other persons under disability from carrying weapons and promotes public safety by requiring those who intend to exercise the right to carry weapons to show that they can safely handle them. At the same time, it does not infringe the right by giving authorities the power to arbitrarily refuse a permit. [Page 176]


VI. POLICY

The . . . Sixth Commandment is, "Thou shalt not kill." Any biblical scholar will tell you that's a mistranslation from the original Hebrew. It should instead read, "Thou shalt not murder."

In Ecclesiastes Chapter 3, Verse 3, the Bible also tells us that there is a time to kill. . . .

A time to kill would have been when Colin A. Ferguson began shooting passengers on the Long Island Railroad. There were men on the train with the courage to tackle and capture Ferguson even though they were unarmed-but not before Ferguson had shot dozens of people. If only one person had been armed, innocent people might be alive and Ferguson dead.

Violence is not of itself always wrong. Sometimes committing an act of violence is a right and a moral necessity. When violence is righteous, it is glorious. If we do not understand this and ready ourselves with arms and training for the rightful violence that is necessary to defend the innocent, then the random violence eating away at our nation's substance is just what we have coming to us.[197]

Dennis [a convicted rapist] tells a story of a girl he knows who was gang-raped. She didn't tell anyone. Every day after the incident she had to continue to walk past her violators on the way to school. Every time she passed them they jeered at her, "Coming back for more, baby? You really liked it, didn't you, baby?" Dennis told me that after a while the girl began playing up to the boys, teasing them sexually. At first, he said, the guys didn't trust her new interest in them and avoided her. It didn't take long for them to respond; she wouldn't let up. One night she engaged them all in another group episode and killed three of them with a knife she had taken from her mother's kitchen drawer.

"You gotta believe that this whole thing wouldn't have happened in the first place, and these punks wouldn't be dead now, if this little lady pointed a gun at one of these guys' zippers and told him what she was going to blow off if any one of them came within five feet of her," Dennis said.[198] [Page 177]

Perhaps more troubling than all of these [other justifications for "gun control"] is the assumption that the most effective mode of self-defense permitted . . . is the First Amendment right to scream 911.[199]

The real issue in the concealed-weapons issue, as in the "gun control" issue as a whole, is whether there is a right to self-defense. Just as it was impossible to effectively prevent drinkers from drinking during Prohibition, just as it is impossible to prevent junkies from getting their drugs today, it is impossible to prevent criminals from getting weapons, including firearms. They will be stolen from the military and police, smuggled in, and illegally manufactured, just as controlled substances are today. For criminals, guns are the "tools of the trade." They will do what they have to do to get them, regardless of the laws. After all, it is already a Federal offense for a felon to possess a firearm. This law is widely flouted. The crooks will always possess and carry guns. The real issue is whether honest citizens will be permitted to possess and carry guns to defend themselves against the crooks. [200] Even such fervent gun-grabbers as Michael Beard and Josh Sugarmann of the National Coalition to Ban Handguns (now the Coalition to Stop Gun Violence) admit that no law will prevent criminals from getting guns and that the entire purpose of "gun control" laws is to disarm law-abiding citizens.[201]

The right to self-defense is protected by the Constitution, and carrying weapons is necessary to exercise this right. By carrying a concealed weapon for self-defense, an honest citizen is simply following the Scouting creed: "Be prepared." Laws forbidding carrying concealed weapons force a cruel choice on people: carry a weapon for self-defense and risk prison, or do not carry a weapon and risk being murdered, raped, or robbed. The saying, "Better to be judged by twelve than carried by six," may be true, but no legitimate social interest is served by forcing this Hobson's choice on honest citizens. Because no legitimate social interest is served by sacrificing innocent human lives to preserve guilty human lives, there is no legitimate social interest in preventing honest citizens from carrying the weapons they need to exercise their right to defend themselves. And a great social cost is paid by states with laws forbidding carrying concealed weapons.

Handguns are the weapons with the most utility for self-defense. American citizens use handguns in lawful self-defense between 1.5 to 1.9 million times [Page 178] a year, while all firearms are used in self-defense between 2.2 to 2.5 million times a year.[202] Felony victims who resist by means of firearms are significantly less likely to be killed or injured than those who do not resist.[203] Other methods of self-defense are of extremely dubious value.[204] Felony victims who resist by means other than firearms are in fact more likely to be killed or injured than those who do not resist at all.[205] The fact that handguns are used far more often in self-defense than other firearms indicates that they have far more utility for self-defense than other firearms. Certainly, they are much more practical to carry for defensive purposes than are long guns. The fact that resistance with firearms is the only method of resistance which improves the victim's chances of escaping unharmed indicates that the right to self-defense as a matter of necessity must include the right to carry firearms. As Florida's experience shows, there is considerable social utility in allowing honest citizens to carry handguns to defend themselves. It results in the commission of fewer murders and rapes than would otherwise occur. By contrast, the District of Columbia's experience proves that banning possession (let alone carrying) of handguns by honest citizens results in more murders and rapes than would otherwise occur. The effectiveness of handguns for purposes of self-defense, and the fact that "gun control" laws (such as laws forbidding carrying concealed weapons) actually increase crime proves that Justice Louis Brandeis was right when he said, "We shall have lost something vital and beyond price on the day when the state denies us the right to resort to force in defense of a just cause."[206]

Some persons have suggested that restoring a "Wild West" atmosphere in which it is common for people to carry guns is undesirable and would increase crime.[207] It would not. During the California Gold Rush of the 1840's and the Oklahoma land rush of 1889, there were a large number of armed citizens and no law-enforcement authority to speak of.[208] There was also very little violence against women, theft, robbery, or burglary.[209] Compared to modern American cities, such a "Wild West" atmosphere would be a major improvement. Thus, public policy is best served by providing a concealed weapon permit system by which any honest citizen can obtain a permit by meeting reasonable and [Page 179] objective criteria. Florida's permit system provides an excellent example of such a system.

The right to carry weapons for self-defense is particularly important because courts have repeatedly held that police departments exist to prevent crime in general but have no duty to prevent any specific crime or protect any specific person, no matter how clear and present the danger faced by that person. [210] If the state will not accept responsibility to defend its citizens, citizens need the right to possess and carry weapons to defend themselves. Even if a state were to accept responsibility to make reasonable efforts to defend citizens from criminal assault, the "thin blue line" of police protection is wafer-thin. The vast majority of criminal assaults are completed within a few minutes of their inception.[211] It is extremely unrealistic to think that the victim could manage to get to a phone, call the police, and expect to see an officer arrive while the offense is still in progress. Although anti-gun politicians have strong-armed several police organizations into publicly opposing right-to-carry bills and actually forbidden police officers to publicly support right-to-carry bills,[212] most police officers recognize the fundamental futility of relying solely on police protection from criminal assault.[213] Seventy-six percent of police managers and street officers believe that concealed weapon permits should be issued to every trained and responsible adult applicant.[214] Many police officers would not let their wives or girlfriends out on their own without a gun.[215] Especially the members of the "thin blue line" recognize just how thin that blue line really is.

Even politicians and commentators who condemn honest gun owners exercise the right to carry or otherwise use [Page 180] guns for self-defense or have bodyguards exercise the right for them. Ted Kennedy, Stephen Solarz, Dianne Feinstein, and Carl Rowan have all carried or otherwise used guns for self-defense and have all advocated outlawing or severely restricting honest citizens' right to own and carry guns.[216] By exercising the right to carry or otherwise use guns for self-defense while simultaneously attempting to pass laws to prevent the hoi polloi from doing the same, these hypocritical elitists have demonstrated both the utility of guns for self-defense and the moral bankruptcy of laws intended to prevent honest citizens from defending themselves. If those who most fervently push to disarm honest citizens refuse to disarm themselves, they can hardly expect anyone else to feel it is prudent to disarm.


VII. CONCLUSION

The Second Amendment protects the right to keep and bear arms. The Fifth and Fourteenth Amendments protect the right to self-defense, and the Ninth Amendment protects the "Rights of Englishmen" which were recognized under the common law at the time of the Founding, including the right to carry weapons for self-defense. Because the right to self-defense guaranteed by the Fifth and Fourteenth Amendments implies the right to carry the tools needed to exercise the right, and the right to keep and bear arms is specifically guaranteed by the Second Amendment, the right to carry concealed weapons for self-defense is within the emanations and penumbras of the Second, Fifth, Ninth and Fourteenth Amendments.

Link Posted: 2/20/2006 8:44:58 PM EDT
CLIFNOTES
Link Posted: 2/20/2006 8:47:36 PM EDT

Originally Posted By netwt12:
CLIFNOTES


basiclly a essay arguing the absoulteionist view of the second amendment and some other parts of the bill of rights

It is quite long was that someones poly/sci thesis or something?
Link Posted: 2/20/2006 9:05:13 PM EDT
It is a Masters Thesis one of my friends is using for a source of a masters class and sent it to me. I read it and understood it in 8 mins but I do read fast. I just thought it would be a good read for a Political viewpoint but I am just trying to review his sources to make sure they are kosher and not just some off the wall stuff he is pulling off the net with few facts.
Link Posted: 2/20/2006 9:21:08 PM EDT
VERY well done.

I like the dissection of the Miller case and the use of grammar experts to define the second amendment. The following supporting statements were lucent, but..

You (your friend) always have to deal with the asshole interpreting this essay. Academians can clearly be obnoxious when dealing with this and their political views interfere tremendously.

I love the paper, but I am biased.

Is your friend likely to encounter the BS factor?

(also -didn't see the sources, don't care.. seen most already.. make sure those are good)

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