If You Want to Stop Crime, Let Me Have What’s Mine: A Student’s Thoughts On The Second Amendment

Birdsong wishes to share with you a well written  directed research paper by student Daniel Burgess.  Mr. Burgess is a strong advocate of the Second Amendment to the Constitution and opposes gun control.  His paper analyzes the early foundations of gun control laws in the U.S.  He submits that more citizens with guns would mean less crime. It is his basic thesis that the Second Amendment right of U.S. citizens to bear arms is a enumerated individual right.  Mr.  Burgess makes some cogent arguments concerning gun control  and self defense.  He has given Birdsong his permission to share his  thoughts and arguments with a wider world. Take a gander.

If You Want to Stop the Crime, Let Me Have What’s Mine:

America’s Crime Rates and Our Individual Right to Keep and Bear Arms

Daniel W. Burgess, Jr.

July 27, 2009

 I.                   Introduction

This paper addresses the issues of crime and gun control. There is an ongoing debate about whether gun control is the problem or the solution. Proponents of gun control seek to strip the people of their constitutional right to keep and bear arms under the veil of flagrant and idyllic responses to crime, claiming guns are the problem. The opponents of gun control fight for the very freedom which was granted to them by the founding fathers and enumerated in the Bill of Rights, arguing that more guns equals less crime. [1] The reality is that by taking a law abiding citizen’s means of self-protection, one is essentially arming the criminal and inviting crime into every peaceful household in America. Italian criminologist, Cesare Beccaria, summed it up perfectly by stating, “When guns are outlawed, only outlaws will have guns.” [2]

This author is a convert to guns. Growing up in a rural community of just under 12,000 residents, guns were part of the culture, however, my parents never owned one. They were never against those who had guns; they just did not prefer them around their own children. No one in my family knew much about them, except for what we saw on television. It was our close family friends who introduced us to the idea that guns are necessary; a way of life which can become your best friend in a time of peril. They are avid hunters and staunch advocates for the National Rifle Association. I was twelve years old and riding in their car when I interjected my thoughts on their conversation on guns by saying, “If we just took away all the guns in this country, it would be a much safer place!”

I learned a valuable lesson that day which has since changed my outlook on guns and safety. I was young, and I was naïve. I began to understand the bigger picture: guns were here to stay. Eradicating guns would be like attempting to duplicate the parting of the Red Sea. It would take an act of God to successfully rid the world of guns.

Today, this author is a licensed concealed weapons carrier and a strong public advocate for the protection of an individual’s right to keep and bear arms. I have appeared on local news channels debating the case for guns. At the age of 18, I ran for and was elected to the Zephyrhills City Council, becoming the youngest elected official in the State of Florida. While on the council, I campaigned against gun control and successfully fought back legislation that would have restricted one’s right to legally carry a firearm in public places.

The Second Amendment to the United States Constitution reads, “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.” [3]  Thomas Jefferson believed that, “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes…such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.[4]  During Jefferson’s period of time, America was a nation still well within its infancy of being free from British rule and yet clearly extended to its citizens the right to keep and bear arms.

When the ever changing world begins to modernize and rationalize the needs of societies with respect to civilized advancements and contemporary thinking, fundamental liberties will suffer. Detractors claim the Second Amendment is a collective or group right due to the specific mentioning of a militia. This is not a literal interpretation; it is a molded one. Interest groups have sought to bend the clear intent of the Framers to better fit their goal of abolishing the individual right to keep and bear arms. This paper is written to reinforce the notions that the enumerated individual right protected by the Second Amendment to the Constitution of the United States of America means more guns may well mean less crime. [5]  This paper will analyze the early foundations of gun control laws, the case law that has followed and the statistics which show a drop in crime rates amongst states and cities that allow their citizens the right to keep and bear arms.

Patrick Henry argued during the convention to ratify the Constitution that, “The great object is that every man be armed . . . Everyone who is able may have a gun.[6]  Clearly, Henry’s message impresses the intent that the Second Amendment was drafted for the individual, not the communal right. Those who were able to have a gun were the law abiding, deserving citizens and when you disarm a deserving citizen of their firearm, you are arming the criminal. Gun control laws will never successfully eradicate weapons just as the war on drugs has yet to eliminate the illegal production and use of such substances. Law abiding citizens are not the ones selling the drugs, it is the criminals, just as the law abiding citizen will not have a firearm while the criminal will.

Thomas Paine in his wisdom, foresight and ‘common sense’ addressed this very pattern when he said, “The peaceable part of mankind will be continually overrun by the vile and abandoned while they neglect the means of self defense…[Weakness] allures the ruffian [but] arms like laws discourage and keep the invader and plunderer in awe and preserve order in the world…Horrid mischief would ensue were [the good] deprived of the use of them…[and] the weak will become a prey to the strong.[7]This is the common case of a few who ruin it for everyone. In a twisted scenario that is only possible in the realm of law and politics, the criminal gets to have his cake and eat it too. Not only will the criminal still have his gun when guns are outlawed, but the innocent will be stripped of their right to own a gun due to the crimes of the criminal, making it easier for the criminal to keep committing the crimes. It is ironic that the very gun control laws that are intended to reduce crime will only create a bigger problem for the criminal justice system in the end.

II. The Rights of an Individual and Self Defense

In order to understand the thesis that more guns means less crime, one must first accept one basic factor: the Second Amendment is an enumerated individual right. At the hands of organizations such as the American Civil Liberties Union (ACLU), the Second Amendment to the Constitution of the United States of America has been a constant target for scrutiny. The official ACLU position on this issue holds that given the [Second Amendment’s] reference to “a well regulated Militia” and “the security of a free State,” the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. [8]  Despite the irony behind the ACLU’s ‘collective’ positioning on an issue where their ideology does not mesh well with their political agenda as compared to their numerous other ‘individual’ rights stances on controversial issues such as abortion and gay marriage, the organization still holds that its mission is to, “defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.” [9]

The ACLU’s application and interpretation of the Second Amendment clearly does not match the intent of the Framer’s when drafting the Bill of Rights to the Constitution. Thomas Jefferson proposed that “No free man shall ever be debarred the use of arms,” [10]  and James Madison, the drafter of the Second Amendment, said that, “The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.[11]  Madison’s interpretation of an American’s individual right to keep and bear arms was to preserve one’s liberties from fear of government oppression. When passing the Bill of Rights, the Senate furthered the intent that individual rights were to be at the heart of the Second Amendment by rejecting an amendment which would have limited the keeping and bearing of arms “For the common defense”. [12]  The ACLU’s statement that, “Our constitution is meant to safeguard against government abuses of power…But all too often, the rights of those involved in the criminal justice system are compromised or ignored,” [13]  should lend to a unilateral approach and agreement to Madison’s plight and the preserving of the individual right of an American citizen to keep and bear arms.

The right to keep and bear arms is not only available to protect American citizens from the government, but more importantly, to protect a law abiding citizen from one who wishes to harm himself, his family or others. The right to keep and bear arms is a facet of life which is uniquely American and one which prevents crime, and does not promote it. American legal jurisdictions provide for self-defense, which is the use of force to protect oneself, one’s family, or one’s property from a real or threatened attack. [14]  A person is justified in using a reasonable amount of force in self-defense if he or she believes that the danger of bodily harm is imminent and that force is necessary to avoid this danger. [15]

On the night of December 14, 2002, Ronald Dixon, a twenty seven year old father of two and a veteran of the United States Navy, learned first hand the importance of self defense and the necessity of an individual’s right to keep and bear arms. Dixon awoke in the middle of the night to find an intruder standing in the bedroom of one of his young children. [16]   “I went in. … I looked in his face. I didn’t know this guy; I was so shocked … In a nervous voice I said, ‘What are you doing in my house?’ and he ran toward me yelling, ‘Come upstairs!’ like there were other people with him. I shot him ‘cause I thought more people were in the house,’” Dixon told the New York Daily News. [17]  “The only thing I could think about was my family – there was no telling what he would do to my children or girlfriend,” [18] 

It appears as if Mr. Dixon acted in a way in which any reasonable and prudent person would have done in the same or similar circumstances, but there is a catch. The problem: due to the City of Brooklyn’s tough gun control laws, [19] Mr. Dixon was charged with illegal possession of a firearm when they discovered his gun was not legally registered in New York, which is a charge that could carry up to a year in prison. [20]  Dixon proved he had obtained the firearm legally in Florida and tried to register the gun in New York, but he was still charged with a reduced count for disorderly conduct. [21]

Notwithstanding the public’s outrage at hearing the news that a father, who by protecting his family in his own home from a repeat home invader was being prosecuted for a crime, this event and others like it are more than reason enough to examine and analyze the issue of gun control and the effects it has on crime rates. In a similar case tried before the Court in the District of Columbia, two people in a car were defending themselves and shot and killed an attacker who had a gun but were found not guilty by a jury in a case of self defense with an unregistered gun. They were not prosecuted because the then District of Columbia gun control laws had no criminal liability for protecting life even with unregistered weapons. [22] Here, Mr. Dixon had an unregistered gun which was used in self defense for the sole protection of life. This is just one example of how gun control laws can punish the very victims they are meant to protect. If Mr. Dixon had adhered to the City of Brooklyn’s strict laws on gun control, he or his family may very well have been injured, or worse, murdered.

The law should not punish a man for defending his castle and his family. The Second Amendment provides for an individual’s right to keep and bear arms against government oppression and matters of self defense. Here, we have a self defense situation, which without Mr. Dixon’s firearm might have turned the tables on the innocent family. This was not a first-time criminal; this was a repeat home invader. [23]  Brooklyn has strict laws against the possession of a firearm and criminals are aware of this. To argue that criminals do not favor these kinds of laws and that they do not give the criminal the upper hand in executing crimes is a naïvesuspension of the raw truth. Statistics have proven that where citizens cannot defend themselves against others due to gun control laws and regulations, there will be more crime. [24]

III. Case Law and Equality

From its inception, the intent of the Second Amendment has been challenged in the Courts. Consistently, the Supreme Court of the United States has held that the Second Amendment enumerates an individual right. In United States v. Cruikshank, [25] the Supreme Court held that while the Second Amendment guarantees an individual right, it is the responsibility of the states, not the federal government, to ensure that the fundamental rights of those who are infringed will be upheld. [26] Presser v. Illinois [27] furthered the individual right outlined by Cruikshank, but dealt more with the issue of the Second Amendment as relating to individuals and not militias. [28] In the majority opinion, the Court said, “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.[29]

Presser ruled out the notion that the Second Amendment dealt with solely the rights of militias. The case explained that it was the right of the arms bearing American citizen to form the reserve militia for the country and for the individual states. Therefore, the formation of a militia is contingent upon an individual’s right to keep and bear arms, rendering the Second Amendment a doctrine addressing the people’s right to possess a gun, not the communal right. In 1939, the Supreme Court again addressed the Second Amendment in United States v. Miller. [30] Miller limited the right of the people to bear only those arms that are of “common use at the time.” [31] The case dealt with the legality of a shotgun having less than eighteen inches in length. [32] The Court affirmed that the Second Amendment was an individual right but that with regard to the formation of a militia, “Men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” [33] Essentially, while I am entitled to the possession of my firearm, if I was to bear a bazooka for the common defense, the Court would more than likely deem this weapon to be not of ‘common use at the time.’

It is interesting to note that while the Second Amendment was intended as an enumerated individual right, it has not always been strictly construed in an equal manner. Recall Jefferson’s statement that no ‘free man’ should be denied the right to keep and bear arms. Over the course of American history, the African American community has had to overcome slavery, being denied the right to vote, countless forms of oppression and segregation, let alone being denied their right to keep and bear arms. The Supreme Court held in their 1857 decision, Dred Scott v. Sandford, [34] that while an African American was not afforded protection under the Constitution and Bill of Rights, all free men do have the right to keep and bear arms. The Court went on further to describe the rights African Americans would have if they were deemed a full citizen by saying, “It would give to persons of the negro race, … the right to enter every other State whenever they pleased, … the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” [35]

The Civil Rights Act of 1866 was the first of a series of civil rights acts passed. The Act was passed to protect the freed slaves from the southern Black Codes that sought to strip the freedoms of African Americans during the post Civil War Reconstruction. [36] The Act states that all people who did not fall under the laws of any ‘foreign power’ were to be citizens of the United States. [37] Becoming a citizen meant that African Americans were finally afforded protection under the Bill of Rights. The Fourteenth Amendment to the Constitution was then ratified in 1868 and further granted Constitutional rights to freed slaves and their descendants. [38] The Fourteenth Amendment contains the Equal Protection Clause which provides that, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” [39] Having been granted full and equal protection of the laws, African Americans were now afforded the right to keep and bear arms. Although equal protection under the laws had been granted, the Supreme Court decision in Plessy v. Ferguson [40] would severely set back the Civil Rights movement for over half a century.

Plessy held that states could enforce the segregation of blacks from whites so long as the states provided the equivalent of what one was being separated from for the segregated party. [41] This holding generated the ‘separate but equal’ doctrine. [42]For over sixty years, African Americans, while granted full protection under the Bill of Rights, were segregated against and intimidated by racist organizations like the Ku Klux Klan. Many African Americans were tortured or even killed at the hands of racist vigilantes. Although they had the right to keep and bear arms for the purposes of self defense, many African Americans did not exercise their right in these perilous situations out of fear of being prosecuted in the court of law. They felt as if they would be punished for defending themselves against a white individual. Crime rates escalated among African American communities across the nation. [43]The very laws adopted to protect life, liberty and the pursuit of happiness appeared biased against segregated individuals. Shortly after the Civil War, Union General Rufus Saxton testified before Congress that state laws were seeking a ‘disarmed’ and ‘defenseless’ African American population. [44]General Saxton went on to say that disarmament, “Would subject them to the severest oppression, and leave their condition no better than before they were emancipated, and in many respects worse than it was before.” [45] We may never know how many innocent lives might have been saved or how much crime could have been prevented if only the legal system had dealt with segregation and the onslaught of racial crime in a just and equal way. If African Americans had felt they were protected under the scope of the law to defend their life in imminent fear of danger, many senseless and brutal killings due to racial discrimination may have been prevented which would have significantly altered the course of American history.

The Civil Rights Act of 1964 outlawed racial segregation. [46] Generally, African Americans now have full and equal protection under the law without fear of racial persecution. This landmark Act, however, did not prevent individuals from attempting to make the purchasing of a firearm harder for lower income African Americans. An obvious attempt at restricting an African American’s right to bear arms was the passage of the Gun Control Act of 1968. [47] The Act was passed in response to rising crime rates amongst minority groups, particularly African Americans. [48]

Congress blamed gun companies for producing affordable handguns which were made easily accessible to blacks. [49] These handguns were dubbed ‘Saturday Night Specials,’ which was the censored version of the full phrase, ‘Nigger town Saturday Night Special,’ leaving no doubt that this Act was passed to directly target the black community. [50] The Act adopted what is known as the ‘sporting purposes’ standard that states all imported firearms must be “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” [51] This test excluded many of the imported and inexpensive handguns being purchased by the African American community. The ‘sporting purposes’ standard limited the ability of African Americans to purchase a firearm. While it is clear that the intent of Congress when ratifying the Bill of Rights to the Constitution was to make the Second Amendment an individual right, it is even more clear that in its implementation, the Second Amendment has not been applied equally.

Law-abiding African Americans might benefit from firearms the most. African American communities are more likely to encounter violence and crime, yet laws restricting their ability to purchase an affordable firearm inhibit their ability to purchase a firearm legally. [52] In fact, since the passage of the Gun Control Act of 1968, the gun death rate amongst African American males ages 15 to 19 rose from 37 per 100,000 in 1985 to 105 in 1990. [53] By 1993, the gun death rate had tripled. [54]The evidence shows that the Gun Control Act of 1968 has been unsuccessful in thwarting the crime rates amongst targeted black communities across America. As gun control laws continually seek to prevent minorities from purchasing firearms, where are the civil rights leaders opposing these unfair measures andundue burdens? “Many black civil rights leaders have jumped on the gun control band wagon…Instead of fighting for their people’s right to bear arms, many call for disarmament as vehemently as did the Ku Klux Klan during the Reconstruction era.” [55] The above statement is particularly troubling. So much emphasis is placed on the call for equality or against discrimination that the very fundamental freedoms fought so hard for by the likes of Dr. Martin Luther King, and many brave men before him, are secretly slipping through the cracks. Benjamin Franklin said it best when he proclaimed, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” [56]

The most recent Supreme Court case to address the question of the whether the Second Amendment was and individual right was the landmark District of Columbia v. Heller. [57] This case serves as a major victory to those in favor of an individual’s right to keep and bear arms. The Court not only held that the Second Amendment protected and individual right to bear arms, it also deemed the District of Columbia’s gun control laws were unconstitutional and violated that right. [58] The Court held that, “The District’s ban on handgun possession in the home and its prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense violated the Second Amendment.” [59] Although this case serves as a crushing blow to gun control advocates, the fight continues. This battle may have been won, but the war rages on.

If we allow lawyers, lobbyists and politicians the opportunity to hack at our enumerated rights, we deserve to suffer the consequences. The Framers intended for us to be the heirs of a great responsibility: to preserve the liberties our forefathers fought and died for. All too often we take for granted the liberties we have been given. Freedom is never free, and many Americans have paid the ultimate price for a cause greater than their own well-being. All Americans, no matter what race, creed, religion, color or culture, must fight for their essential liberty to keep and bear arms or they will be forced to sacrifice not only their safety, but their freedom as well. Individual citizens have the right to own a firearm to protect themselves from tyranny and crime and the government has no right to prevent the people from doing so.

IV. The Debate

We have all heard the slogan, “Guns don’t kill people, people kill people!” In essence, this is exactly right. This should be paralleled to a similar slogan, “Cars don’t kill people, drivers operating cars kill people!” If all negligent motor vehicle accidents that resulted in the fatality of one or more people were to be considered criminal offenses and compared to the sum of all forms of armed crime rates, the rate of annual fatal motor vehicle accidents would greatly outnumber annual rates of crimes with a firearm. In 2005, 43, 667 people were killed in motor vehicle accidents. [60] Likewise, in 2005, the number of firearms related deaths were 30,694. [61] While no one can diminish the significance of the thousands of lives lost at the hands of firearms related crime, it should be noted that automobile deaths outnumber firearms related deaths by nearly 13,000 annually. [62]

The mortality rate is very high relating to motor vehicle accidents, yet the government does not respond with more legislation as it does relating to gun crime. Instead of going after the real problem, the operators, government has attempted to punish the device, not the user. A gun, just like a car, is nothing more than a thing and without human interference, that thing cannot function. When studying the number accidental deaths between motor vehicle and firearms incidents, there is still a large disparity. In the year 1910, when automobiles were still in their relative infancy and most families did not yet own a car, the number of accidental deaths between motor vehicles and firearms incidents were the same at 1,900 respectively. [63] Twenty years later, deaths by motor vehicle accidents skyrocketed to a staggering 32,900, while accidental death by firearms totaled 3,200. [64] Fast-forward to the year 1990 where there were 46,000 accidental deaths caused by motor vehicles compared to only 1,300 accidental deaths caused by firearms. [65] Car accidents are 28 times more fatal than gun accidents. [66] If all the laws regulating motor vehicle traffic, licensing, speed limits, tax, tag and titles fail to reduce the large amount of annual deaths still suffered on American roadways, logic would suggest that the same result would apply to any attempts at gun control legislation.

Statistics show that 98 percent of the time an individual uses a firearm for defensive purposes, all they have to do is reveal their weapon, and an attacker will cease from committing their respective crime. [67] This means that only 2 percent of crime will ensue in a situation where the victim presents a firearm. If 98 percent of crime can be prevented by arming law-abiding citizens, where is the government reform to abolish gun control laws preventing said citizens from defending themselves and their homes? Surely, government bureaucracy has better things to do than regulate such an effective and efficient means of self-protection. Unfortunately for the law-abiding citizen, they do not. This section will analyze the arguments on both sides of the gun control issue while presenting statistical data that supports the case against laws prohibiting firearms.

  1. A.    The Case for Gun Control

The decision in Heller was a major setback to gun control lobbyists and special interests groups who oppose an individual’s right to bear arms. [68] This, however, is not the first time the Supreme Court has held that the Second Amendment was an individual right. Recall Presserand Miller, both held in favor of the individual rights interpretation. This is however, the first time the Supreme Court has addressed the individual rights issue directly. Gun control advocates can no longer successfully argue against the right of a citizen to own a firearm. The District of Columbia’s ban on handguns may have been overturned, but there are many cities that still restrict firearms possession. Three large cities in particular who have similar bans on firearms are Chicago, New York City and San Francisco.

The same attorneys who successfully tried the Heller case are pursuing the city of Chicago as the city’s gun control laws directly resemble that of the District of Columbia’s. [69] Given the ruling in Heller, the decision in this case should mirror Supreme Court’s holding and overturn Chicago’s gun control laws. However, these laws have been around for a very long time and have been tried before, each time unsuccessfully, which leads one to believe that we have another up hill battle ahead of us. The Seventh Circuit in Nat’l Rifle Ass’n. of America v. City of Chicago [70] held in light of  Heller that “Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.” [71] The Seventh Circuit believes it is a decision for the justices to determine whether states are ‘incorporated’ or bound by the decision in Heller. [72] Here, the Court makes a valid point. The Supreme Court in both Cruikshank and Presser held that the Second Amendment, while an individual right, only applies to the federal government’s ability to restrict its enumerated rights and holds that it is within the state’s discretion to implement laws regulating the right to bear arms. [73] The Supreme Court may give some leeway to state’s rights on the issue of specific regulation, but it can be argued a city’s total banning of firearms is a blatant violation of the Second Amendment’s enumerated individual rights clause.

The situation in Chicago is much different from the city of Boston, where in order to obtain a permit to posses a firearm you have to jump many hurdles. [74] In Chicago, one is virtually banned from owning a firearm within city limits. The Tenth Amendment may delineate authority to the states on any matter not addressed within the Constitution; however, the Second Amendment specifically addresses the matter of the right of an individual to bear arms. [75] Therefore, any total ban on firearms possession is a direct violation of one’s constitutional rights; states do not have the authority to restrict such rights and this issue has already been addressed by the Supreme Court in Heller. [76]

The Seventh Circuit’s decision should come as no surprise. Prior to their ruling in Nat’l Rifle Ass’n, the Court held another local ban on guns as constitutional. Just outside of Chicago, the Village of Morton Grove became the first town in the nation to pass a ban on the possession of handguns in 1981. [77] When the ban was challenged, the Court held that, “the ordinance banning handguns in the village protected the safety and health of the citizens, did not violate the resident’ constitutional rights, and was a proper exercise of the village’s police power.” [78] The ban remained in effect for nearly 30 years until the Heller decision deemed a ban on one’s right to possess a firearm unconstitutional. Upon review by the village board, Morton Grove lawmakers voted in favor of repealing its ban on handguns in response to the Supreme Court decision. [79]

Morton Grove correctly acknowledged their ban as unconstitutional in light of the Heller ruling that an individual has the right to keep and bear arms. If the supreme judicial body determines the denial of one’s right to possess a firearm is contrary to the Bill of Rights, then all state laws or city ordinances banning their citizens of their right to bear arms are unconstitutional. Cities would be wise to follow suit with Morton Grove, to avoid the eventual lawsuits challenging their respective gun control laws.

Nat’l Rifle Ass’n, now McDonald v. City of Chicago, [80] is currently proceeding to the Supreme Court. Counsel for the National Rifle Association has filed a petition for writ of certiorari andis currently awaiting review. They are asking the Court to hold that the Second Amendment binds state and local governments. [81] If the Court is to follow stare decisis with their ruling in Heller, overturning the District of Columbia’s ban on handguns as unconstitutional, they must hold that state and local governments are bound by the Second Amendment to not deny a citizen their individual right to bear arms. There should not be a double standard across the nation saying this city’s ban is unconstitutional while this city’s ban is not. The Court cannot cast doubt on their landmark ruling against the D.C. ban. Doing so will not only hurt the credibility of the Second Amendment, but the consistency of the Supreme Court.

In response to the petition for writ of certiorari, 34 states have expressed their support for McDonald in favor of binding states and local governments to the Second Amendment. [82]33 of those states, led by Texas, have written a joint amicus brief to the Supreme Court urging the Court to hear McDonald. The amicusbrief argues that the Second Amendment applies to the states under the Fourteenth Amendment and that 44 state constitutions protect their citizen’s right to bear arms. [83]The Constitutional Accountability Center has also issued an amicus brief to the Supreme Court regarding McDonald. Spearheaded by leading professors in the area of constitutional law, the brief states that, “In Heller, the Court identified the outmoded reasoning of Cruikshank. Amici urge the Court to take the next logical step and grant review in this case to provide definitive guidance to the lower courts regarding the continuing validity of…Cruikshank, Presser, and Miller.” [84]

If a state cannot deny its citizens the right to free speech or due process, they cannot be permitted to deny its citizens the right to bear arms. Both free speech and due process fall under the Bill of Rights as does the right to bear arms. The only lingering question on the meaning of the Second Amendment that provided for subsequent bans on handguns was whether or not the Second Amendment applied to individuals or the collective whole. This question has since been directly addressed by Heller and to interpret the Second Amendment as a collective right is now a moot point.

In 2005, the San Francisco Housing Authority amended its lease agreements to prohibit the possession of firearms or ammunition by residents living in public housing in the city of San Francisco. [85] The National Rifle Association filed suit against the housing authority, challenging the constitutionality of their ban on firearms in light of the Supreme Court’s decision in Heller. [86] On January 14, 2009, the housing authority settled with the NRA, allowing their residents to possess firearms in San Francisco public housing units. [87] The pressure is on state and local governments to adhere to the letter of the law as handed down by the Supreme Court. Here, the San Francisco Housing Authority settled well before the case entered into trial. San Francisco recognized the impact Heller would have on its ban on firearms in public housing and they folded. New York City’s ban on firearms possession is yet another example of a big city denying its citizens their Constitutional right to bear arms. These individual lawsuits will be necessary until the Supreme Court grants review in McDonald and holds state and local governments accountable to the Second Amendment.

 B.     Regulation that Counts

Not all gun control laws are aimed at banning the individual right to bear arms. There are many laws that seek to place limitations and regulations on the ability to possess a firearm. The Gun Control Act of 1968 prohibits individuals from possessing a firearm who is: convicted in a federal court of a crime punishable for a term exceeding one year; convicted in a state court and punished to a term exceeding two years; a fugitive from justice; unlawfully using controlled substances; mentally defective or committed in a metal institution; an illegal alien, dishonorably discharged, convicted of domestic violence, or subject to a restraining order. [88] The Brady Handgun Violence Protection Act of 1993 implemented a national background check requirement system that helps prevent the sale of firearms to prohibited individuals enumerated under the Gun Control Act of 1968. [89] An article published in the Journal of the American Medical Association in 2000 revealed statistics on the effect the Brady Bill had on violent crime rates that showed the bill was not successful in reducing the number of homicides or suicides. [90]

Of course, not every limitation or regulation is too intrusive. Those who have been convicted of a felony; those who are mentally incapacitated and present a danger towards others; those who use illegal substances and those convicted of domestic abuse should not be allowed the right to possess a firearm. However, to apply such a broad based regulation system to all situations is not entirely effective; each situation needs to be judged on a case by case basis.

The Gun Control Act of 1968 prevents citizens with a dishonorable discharge from the military from possessing a firearm. [91] Although a dishonorable discharge is typically the result of a criminal offense in a military tribunal, it is not necessarily indicative of a person who poses a threat to others or himself. Soldiers can be dishonorably discharged for going absent without official leave (AWOL). While this is an unacceptable act of disobedience and a violation of one’s military commitment and thus deserves severe military punishment, it is not necessarily justifiable to prohibit the dishonorably discharged from possessing a firearm in civilian life. There are situations where soldiers go AWOL because they want to simply be back home with their families. Although this is a serious offense, this soldier clearly poses no criminal threat to his family or his neighbors. If anything, he just wants to get home to them at any cost. Here, there is no need to prohibit one from possessing a firearm. He still needs to protect his family and his home from potential danger.

Not every regulation fits a standard that can be equally applied to all situations; the standard should take into consideration all the extrinsic factors on a case by case basis when determining who can and who cannot exercise their right to bear arms. But more than that, gun control regulation and legislation must be monitored and controlled. Those passionate about their right to keep and bear arms believe that the next step up from regulation is “confiscation.” [92]

  1. C.    The Case Against Gun Control

Gun control advocates consistently argue that the need for protection is provided for by law enforcement. They say there is no need for a firearm for self defense when the police department is there to defend you. Aside from the illogical assumption that a police department can feasibly provide protection to everyone in danger, any time, anywhere, they are also omitting the fact that in America, police departments are immune from a duty to protect by the No Duty rule. The No Duty rule applies to public entities and officers and states that one person owes another no duty to take active or affirmative steps for the other’s protection. [93]

This is a legal distinction between misfeasance and nonfeasance. Misfeasance is where one is negligent by acting and nonfeasance is a total failure to act. [94]The No Duty rule applies to nonfeasance situations and liability for failure to provide protection is generally not applied in nonfeasance cases. [95] The law provides for the decision to act to be left up to individual police departments under the Discretionary Function Doctrine. The Discretionary Function Doctrine states that if it is a decision in which government has discretion, meaning they have choices, and those decisions involve the allocation of resources, the legal system does not allow for the Courts to second guess what the other branches of government have already decided. [96] “The courts around the nation, including the U.S. Supreme Court, have repeatedly and consistently ruled that police have no duty to protect individuals—their duty is only to the community at large.” [97]

In Thompson v. County of Alameda, [98] the county released a juvenile offender, who had violent tendencies towards young children, into his mother’s custody. [99] The county failed to notify the local police or nearby families of the offender’s release. [100] The offender even told county officials that if released, he would kill a child in his neighborhood. [101] Upon release, the offender assaulted and killed a young child. [102] The family of the young child filed suit and the Court held that the duty to warn depends upon and arises from the existence of a prior threat to a specific identifiable victim. [103] Here, the offender threatened to kill ‘a child’ in the neighborhood, not a specific child, therefore there was no duty.

In another case, Riss v. City of New York [104], Linda Riss was stalked by a rejected suitor who threatened her frequently. [105]Ms. Riss sought police protection on several occasions but nothing was done to protect her. [106]Ms. Riss later received a phone call from her stalker telling her it was her last chance and she again contacted the police department seeking protection. [107]The police department failed to provide Ms. Riss with protection and the next day she was assaulted and lye was thrown her face, causing sever scarring and loss of sight in one eye. [108]Ms. Riss sued for failure to provide police protection but the Court held that the police department was not liable for failing to provide police protection to an individual member of the public who was repeatedly threatened. [109]

Police departments are only held to a duty to act when they have already made the decision to provide special emergency service to an individual. [110] We do not live in a society where law enforcement fulfills our need for safety. Clearly, police departments have discretion and immunity from any given situation so long as it is not addressed towards a known individual or they have not already committed to responding to the situation. However, a duty to protect is not universally recognized.

On March 16, 1975, three women were being assaulted by two intruders. [111] The police were called by two of the women as the third was being attacked. [112] The police department promised emergency response but never arrived at the scene and all three of the women were repeatedly raped and beaten while being held at knife point by the two attackers. [113] Once again, the Court held, “A government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.” [114] Here, the police department agreed to render emergency service to the victims and failed to do so, but were still immune from liability under the No Duty rule. The Court’s rationale under this situation was that, “The general duty owed to the public may become a specific duty owed to an individual if the police and the individual are in a special relationship different from that existing between the police and citizens generally.” [115] So even though the police department agreed to respond in Warren, since there was no ‘special relationship,’ there was no duty.

In the City of New York, tough gun control laws do not allow for its citizens to own or carry a firearm. [116]Linda Riss was forced to rely on the police department for protection from her stalker. The police department refused to allocate resources to protect Ms. Riss and they owed her no duty to do so. If Ms. Risswas afforded her constitutional right to bear arms in New York City, she may very well have had the opportunity to defend herself against her oncoming attacker and may not have needed to rely on law enforcement to ensure her own safety. The above examples point to one common theme, American citizens cannot rely on the government to protect our well being and to always keep us safe. It is irrational to ever consider police protection an omnipresent super force that is always ready for action. We cannot rely on a system that provides immunity to law enforcement officers under the No Duty rule and the Discretionary Function Doctrine as our sole means of safety and security.

The answer to reducing crime rates is for every state and their respective cities to allow their citizens the right to obtain a concealed weapons permit. Forty-eight states have already provided some form of concealed carry laws for its citizens with thirty-seven states recognizing permits issued from other states with concealed carry laws. [117] Concealed carry laws allow law abiding citizens with permits to carry a concealed handgun in public places, with some exceptions. Federal buildings, state courthouses, bars and sporting events are generally prohibited places. [118]

This author obtained his Florida Concealed Weapons Permit in 2007. To hold a permit in Florida, one must be at least 21 years of age. Days after my 21st birthday, I registered for a mandatory firearms training course and after I received my certificate of completion, I then had to have my fingerprints taken by the local police department and obtain a current passport photo. The actual application takes some time to fill out and must be notarized by a notary public. With the application complete, you include your certificate of completion, fingerprints, passport photo and personal check in the amount of $117.00. The state then runs a background check and reviews your application. This process can take up to 9 weeks and if approved, your permit is valid for 5 years with the option to renew for a reduced fee.

Many may have a misconception that it is easy to obtain a concealed weapons permit. While most law-abiding citizens 21 years of age or older may obtain a permit, one must invest a good deal of time and money into the process before being granted this right. Carrying a concealed weapon is a right, not a privilege, which is as fundamental as the right to free speech or freedom of assembly. It is meticulously regulated to ensure that no one who poses a danger to themselves or others is granted this right. Although, one who wishes to do harm to himself or others will more than likely not need a permit to commit their crime. Concealed carry laws give the victim the chance to repel a violent attacker and defend themselves from any threat of imminent danger.

Since granting reciprocity in 1987, Florida has seen a significant drop in crime rates. [119] The homicide rate in Florida quickly dropped from 37 percent above the national average to 3 percent below. [120] In the coming years, Florida saw a decrease in murders, rapes and property crime. [121] In 1987, Florida’s total population was 12,043,608 with a total crime index of 1,021,283. [122] In 2008, Florida’s population grew to a staggering 18,807,219 with the total crime index dropping to 833,905. [123] Florida’s total population skyrocketed by nearly 7 million residents in 21 years, but still witnessed a significant decrease in total crime over that time. From 1987 to 1996, Florida’s concealed permit carriers grew from 17,000 to 192,000. [124] As of June 30, 2009, Florida has issued 591,863 concealed weapons permits. [125] From 2007 to 2008, Florida’s murder rate dropped 2.8 percent, forcible sex offenses by 3.5 percent, robbery by 4.9 percent and aggravated assault by 4.2 percent. [126]

Across the board, other states with reciprocity have also experienced a significant reduction in crime. In 1992, the average crime rate per 100,000 citizens in a state with reciprocity was 378.8 violent crimes and 3,786.3 property crimes. [127] Compare that to 684.5 violent crimes and 4,696 property crimes per 100,000 citizens in states without reciprocity in the same year. [128] In states without reciprocity, there was almost double the amount of murders per 100,000 people as compared to states with reciprocity. Estimates show that if states without reciprocity would have permitted concealed carry laws in 1992, murders in the United States would have dropped by 1,839, rapes by 3,727, aggravated assaults by 10,990 and robberies by 61,064, burglaries by 112, 665, larcenies by 93, 274 and auto thefts by 41, 512. [129]

On July 22, 2009, the United States Senate narrowly defeated amendment S. 845 to the United States Code entitled Respecting States Rights and Concealed Carry Reciprocity Act of 2009. The bill would have granted national reciprocity to citizens with concealed carry permits to carry in any state in the union, so long as the citizen adheres to the laws of each respective state. [130] Granting national reciprocity would be a good step in the right direction on the road to reducing crime.

The statistics show that there has been a noticeable decrease in various forms of crime in states with reciprocity. They also show that a criminal is more likely to be deterred at the thought of coming face to face with an armed law-abiding citizen. The more permits issued in a state, the higher the reduction in crime. A criminal does not like the thought of being shot; they too, want to preserve their well being. In 1985, Professors James Wright and Peter Rossiconducted a study wherein they questioned over 1,800 prisoners across the nation to determine whether the armed citizen served as a deterrent to crime. The study foundthat 81 percent of prisoners agreed that the smart criminal will attempt to find out if a potential victim is armed, 74 percent felt that burglars avoided occupied dwellings for fear of being shot, 57 percent of prisoners felt that a criminal feared being shot by citizens more than he feared being shot by police and 39 percent did not commit a specific crime for fear that the victim was armed. [131]

Concealed Carry laws will not only deter a criminal and reduce crime; they will provide the most cost effective means to uphold the public safety. Crime rates will naturally drop as more concealed permits are issued, reducing the volume of calls to law enforcement agencies. More than half of the criminals questioned by the study were more afraid of an armed citizen than an officer of the law and a large majority of the prisoners had been deterred from committing a crime at one time or another for fear of their victim being potentially armed. It is important to note that the prisoners who were deterred did not specify whether they knew their intended victim was armed; they merely assumed their victim was armed and that was enough to make them reconsider the crime.

Statistics reveal that 98 percent of the time an individual uses a firearm for defensive purposes, all they have to do is reveal their weapon, and an attacker will cease from committing their respective crime. [132] It has been said that, “The measure of the effectiveness of self-defense is not in the number of bodies piled up on doorsteps, but in the property that is protected.” [133] Law-abiding citizens that carry legal concealed weapons in public, including this author, never intend to use their weapon, nor do they ever want to. They simply carry for the day that they might have to defend themselves, their family, or those in danger of others. While they hope and pray that day never comes, they will be prepared if it does and they will have a better chance at surviving a violent crime.

V. Principles of Justice and Necessity

In Plato’s Republic, justice is but the interest of the stronger. [134] In a society where criminals are the only people in possession of firearms, they will reign as the strongest and justice would neglect to protect the victims’ rights. Luckily for Americans, our sense of justice concerns the proper ordering of persons, things, opportunities, and outcomes within a group. [135] A just institution is one that properly distributes good and bad, benefits and burdens, all in the appropriate manner, giving each member that to which she or he is due. [136] Justice is a fundamental virtue in our culture that rests upon liberty, fairness and equality. [137]

If an institution disarms deserving citizens, essentially arming the criminal, it is not acting in a just manner. The institution would have failed to properly distribute the good and the bad, the benefits and the burdens. A criminal is not due the right to bear arms, and a law-abiding citizen does not deserve to be disarmed. The bad will reap the benefits while the good will deal with the consequential burdens.

There are two forms of justice, distributive and retributive. Distributive justice, as noted above, seeks to distribute properly. Retributive justice seeks to punish those who deserve punishment, in a proper manner and is also one of the primary goals of sentencing in our criminal justice system. [138] Retribution can be seen as getting even with the wrongdoer, giving him or her that which they rightfully deserve. Retributive justice could best be served before a crime is ever committed, when the armed citizen deters a would-be attacker by standing their ground in defense of their own life. Unless laws banning firearms are repealed, distribution will serve the criminal while retribution will punish the defenseless victim.

The right of necessity states that when an extreme need exists, such as the need for survival, an individual has a rightful claim to an ordinarily unlawful action. [139] This right however only exists where the need is “so urgent and blatantthat “a person is in imminent danger, and he cannot be helped in any other way.” [140] It would ordinarily be unlawful for an armed citizen to take the life of another citizen, but when put in a position of imminent threat of danger, where the need to survive is ‘so urgent and blatant’ that a law-abiding citizen must defend or die, American justice provides us with the right to self-defense. Self defense can be seen as our right of necessity. Gun control legislation creates a legal quagmire by not only denying justice to the weak, but denying people of their right of necessity. The Ronald Dixon case was a situation where the need to survive was ‘so urgent and blatant’ that Mr. Dixon had no other choice but to defend his family by shooting the intruder with an unregistered firearm. Mr. Dixon had no choice but to react in this extreme circumstance, yet, justice punished him for defending his home and his family.

VI. Conclusion

A 1999 Washington Post column titled “A Culture of Violence” proclaimed, “We need to face the fact that we are an exceptionally violent nation…there is no developed country like ours when it comes to killing…there is a lethal combination in our country of a violence-prone culture and gun laws that are more permissive than in any comparable nation.[141] America is a sprawling melting pot with immigrants from around the world beating down our doors to enter the land of promised opportunity. There is not one race or culture in America; it is a mixture of Asian, African, Italian, Irish, English, German and French, among others. America’s unique composition provides for a nation with vast cultural differences and with more opportunities, freedoms and clashing of cultures, comes more conflict. But to go so far as to say that America breeds a ‘culture of violence’ is an absurd accusation.

A 1994 study by the Center for Disease Control found that America led thirty six of the world’s richest nations in rate of gun deaths by accruing 45 percent of all the casualties. [142] But this study does not appear to take into account America’s large population as compared to nations with much smaller populations. One fact is evident; America is a land of law and order. This is a country where even the worst political scandals or elections do not end in civil unrest or a coup d’état. Peaceful protests do not end in genocide. Common sense, more than statistics, will show even the staunchest critic of American gun policies that when compared to other nations, America is not a violent country.

Israel is a place where law abiding citizens walk the streets each and every day with the looming fear of wondering when and where the next public massacre will occur and if they will survive. However, Israel has a different take on gun control when dealing with terrorism and crime. Instead of disarming their citizens in an attempt to make their streets safer, they allow their people to arm themselves for self defense in the event of another attack. [143]Israeli criminologist Abraham Tennenbaumsaid, “The homicide rate in Israel has always been very low—much lower than in the United States…despite the greater availability of guns to law-abiding civilians.” [144]

In Israel, there have been many incidents where an armed terrorist has opened fire with a machine gun on a Jewish crowd that was instantly stopped by armed Israel citizens shooting back and killing their attacker. Considering Israel’s heightened level of imminent surrounding danger, their crime rates remain relatively low. With the majority of their citizens possessing firearms in public, this evidence suggests that more guns do not necessarily mean increased crime rates.

The purpose of this paper was not to propose a national solution for how to deal with gun control laws, but rather, an exposition upon the idea that common sense and individual liberties coincide with the simple fact that more guns do equal less crime. [145] Lawmakers need not ratify some grandiose legislation to fix the gun control problem in America, they simply need to eliminate the very gun control laws which seek to hurt the innocent and fuel the guilty.

America has not been invaded by a foreign nation since the War of 1812 when England sacked and burned a large portion of Washington, D.C. before being expelled by American troops. The irrefutable reason for nearly 200 years of national security from land-born imperial intrusion is best summed up by the commander of the Japanese Naval Fleet during World War II andthe mastermind of Pearl Harbor, Admiral Isoroku Yamamoto, “You cannot invadethe mainlandUnited States. There would be a rifle behindeach blade of grass. [146] Admiral Yamamotowas not referring to the American military might; instead, he was fearful of the arms bearing American citizen who would stop at nothing to defendtheir homeland. Although the exact numbers of Americans who own a gun(s) is unknown, statistical data has confirmed that at least 86 million Americans own a total of approximately 240 millions firearms. [147] Imagine the awe inspiring sight of 80 million American patriots lining the shores of this nation in defense of liberty, the very liberty which gave them the right to defend our beautiful country.

If the gun-wielding citizen alone is enough to intimidate and deter a military superpower from invading a foreign country, one can directly relate the effects gun control laws will have on crime rates. With criminals being the foreign intruder, not having to worry about an armed American citizen would promote less fear and more intrusion, thus increasing America’s crime rates. Sammy “the Bull” Gravano, once a high ranking member of the infamous Gambino crime family, who later became an FBI informant affirmed the notion that gun control laws only give criminals the upper hand by stating, “Gun Control? It’s the best thing you can do for crooks and gangsters. I want you to have nothing. If I’m a bad guy, I’m always gonna have a gun. Safety locks? You will pull the trigger with a lock on, and I’ll pull the trigger. We’ll see who wins. [148] If a criminal was unaware if their intended victim was armed with a gun because the victim legally has the right to keep and bear arms, would Gravano second guess his boastful assumption of who may win?

All the gun control legislation in the world could not successfully eliminate guns or the violence advocates claim stems from their very existence. Everywhere you go, people will have guns. The criminal will have the gun in a world that bans the legal possession of firearms and the law-abiding citizen will be forced to defend his life, home or family with either a toothpick or a steak knife. Leveling the playing field by arming law-abiding citizens may very well determine who wins, who loses and what happens to crime rates in America. [149]

The Second Amendment symbolizes freedom, but more than that, it means security. Chances are, citizens with concealed weapons permits are never going to encounter a situation where they must use their weapon in self defense. But what about the one time they need to? Police departments are generally reactive, not proactive. They typically arrive at the scene of a crime after it has already taken place and the damage has been done. This is not a criticism of law enforcement agencies because they are and always will be vital to the safety and security of this country; however, they simply cannot be everywhere at once.

An armed citizen has the ‘opportunity’ to defend themselves from criminal activity. By arming them, they will now have a better chance at surviving, or even better, deterring the crime from ever being committed. Gun control activists insist on using ‘what-if’ scenarios to show that so much could go wrong with an arms yielding citizen attempting to fend off a criminal. The problem with this approach is that no one has ever advocated the unrealistic belief that by arming citizens, no more citizens will be harmed. We could ‘what-if’ indefinitely, but the purpose of an armed, law-abiding citizen is to give them the opportunity to ensure, not guarantee, that they can go about their normal day with little to no fear of imminent harm or danger. 

 

 

 

 

 

 


[1] John R. Lott, Jr., More Guns, Less Crime 19 (2nd Ed. 2000).

[2]Wayne R. LaPierre, Guns, Crime and Freedom16 (1994). Cesare Beccaria was an Italian Criminologist in the 18th century. His most famous work entitled On Crimes and Punishmentwas a leading exposition on the death penalty and torture as a means to punish crimes. For more information on Beccaria, seehttp://www.criminology.fsu.edu/ crimtheory/beccaria.htm.

[3]U.S. Const. amend. II.

[4]LaPierre, supra note 2, at 39.

[5] Id.

[6] H.R. Rep. No. 86-618 0, available athttp://www.constitution.org/mil/rkba1982.htm.

[7]LaPierre, supra note 2, at 16.

[8] The official ACLU Position on the Second Amendment, available athttp://www.aclu.org/crimjustice/gen/35904 res20020304.html.

[9] The official ACLU Mission Statement, available athttp://www.aclu.org/about/index.html.

[10] See H.R. Rep. No. 86-618 0.

[11] Id., quoting James Madison, Federalist Paper No. 46.

[12] Id.

[13] Official ACLU position on the criminal justice system and individual rights, available athttp://www.aclu.org/ crimjustice/gen/35904res20020304.html.

[14] Brian A. Garner, Black’s Law Dictionary 1390 (8th Ed. 2004).

[15] Id.

[16] Defend Your Family, Go to Jail!, World Net Daily, available at http://www.worldnetdaily.com /news/ article. asp?ARTICLE_ID=33011.

[17] Id.

[18] Id.

[19] For information on New York City’s firearms laws, see New York City Administrative Code sec. 10-131, sec. 10301, ET.SEQ.

[20] Defend Your Family, Go to Jail!, World Net Daily, available at http://www.worldnetdaily.com /news/ article. asp?ARTICLE_ID=33011.

[21] See Id.

[22] Case was tried and shared by Dean Leonard Birdsong in Criminal Law class, Fall 2008 semester.

[23] See supra note 16.

[24] Lott, supra note 1, at 19.

[25] 92 U.S. 542 (1875).

[26] Id.

[27] 116 U.S. 252 (1886).

[28] See Id.

[29] See Id.

[30] 307 U.S. 174 (1939).

[31] See Id.

[32] See Id.

[33] Id.

[34] 60 U.S. 393 (1857).

[35] See H.R. Rep. No. 86-618 0.

[36] 42 U.S.C. 21 §§ 1981, 1981(a) (1866).

[37] Id.

[38]U.S. Const. amend. XIV.

[39] Id.

[40]163 U.S. 537 (1896).

[41] Id.

[42] Id.

[43] Richard Poe, The Seven Myths of Gun Control x (2001).

[44] Id. at ix.

[45] Id.

[46] 42 U.S.C. 21 §§ 2000(e)-2000(e)(17) (1964).

[47] 18 U.S.C. 44 (1968).

[48] Poe, supra note 42, at x, 52. Poe addresses the issue of racial segregation and the government response to cheap handguns used by lower income minorities such as ‘Saturday Night Specials.’ These cheap handguns were partly responsible for the passage of the Gun Control Act of 1968.

[49] Id.

[50]Dave Kopel, Warren Burger and the Second Amendment, Second Amendment Project, available athttp://www. davekopel.com/2A/mags/crburger.htm.

[51] 18 U.S.C. 44 (1968).

[52] Poe, supra note 42, at  x.

[53]Robert J. Spitzer, The Politics of Gun Control 47 (2004).

[54] Id.

[55] Id at xi.

[56] Id at iv.

[57] 128 S. Ct. 2783 (2008).

[58] Id.

[59] Id.

[60]Lois A. Fingerhut, Leading Causes of Injury Deaths-Overall Trends, Center for Disease Control and Prevention available athttp://www.cdc.gov/nchs/products/pubs/pubd/hestats/injury99-05/injury99-05.htm.

[61] Id.

[62] Id.

[63]LaPierre, supra note 2, at 63.

[64] Id.

[65] Id.

[66] Id. at 65.

[67] Lott, supra note 1, at 3.

[68] See 128 S. Ct. 2783, held that “The District’s ban on handgun possession in the home and its prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense violated the Second Amendment.”

[69] For information on the City of Chicago’s firearms laws, seehttp://www.nraila.org/statelawpdfs/ILSL.pdf.

[70] 567 F.3d 856 (7th Cir. 2009).

[71] Id.

[72] Id.

[73] 92 U.S. 542; see also 116 U.S. 252.

[74] For more information on the City of Boston’s firearms laws, seehttp://www.nraila.org/statelawpdfs/MASL.pdf.

[75]U.S. Const. amend. X. The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

[76] 128 S. Ct. 2783.

[77] Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982).

[78] Id.

[79] Village of Morton Grove to Repeal Gun Ban, National Rifle Association for Legislative Action, available athttp://www.nraila.org/News/Read/NewsReleases.aspx ?ID=11317.

[80] 2008 U.S. Dist. LEXIS 98133.

[81] Nat’l Rifle Ass’n., 567 F.3d 856.

[82] Thirty-Four States Support Second Amendment Incorporation, Chicago Gun Case, available at http://www. chicagoguncase.com/. This is a website operated and updated by attorney Alan Gura, counsel for McDonald.

[83] Id.

[84]Amicus brief No. 08-1521 to the United States Supreme Court regarding McDonald v. City of Chicago, in support of the Court granting writ of certiorari.

[85] Guy Montag Doe v. San Francisco Housing Authority, Case No. CV-08-03112 THE. Stipulation Regarding Settlement and Dismissal of Defendants, filed in the United States District Court for the Northern District of California.

[86] Id.

[87] Id.

[88] 18 U.S.C. 44 (1968).

[89] 18 U.S.C. § 921-922 (1993).

[90] John R. Lott, Jr., Gun Licensing and Registration Leads to Increased Crime, Lost Lives, Gun Violence 132 (2002). See also Jens Ludwig, Homicide and Suicide Rates Associated With Implementation of the Brady Handgun Violence Prevention Act, The Journal of the American Medical Association, 2000; 284:585-591. The article states, “Changes in rates of homicide and suicide for treatment and control states were not significantly different, except for firearm suicides among persons aged 55 years or older (-0.92 per 100,000; 95% confidence interval [CI], -1.43 to -0.42). This reduction in suicides for persons aged 55 years or older was much stronger in states that had instituted both waiting periods and background checks (-1.03 per 100,000; 95% CI, -1.58 to -0.47) than in states that only changed background check requirements (-0.17 per 100,000; 95% CI, -1.09 to 0.75).”

[91] 18 U.S.C. 44 (1968).

[92] Licensing and Registration, National Rifle Association Institute for Legislative Action (2000).

[93]Dan B. Dobbs, Torts and Compensation 483 (5th Ed. 2005).

[94] Id.

[95] Id.

[96] Id. at 467.

[97]LaPierre, supra note 2, at 31.

[98] 27 Cal.3d 741 (1980).

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] 22 N.Y.2d 579 (1968).

[105] Id.

[106] Id.

[107] Id.

[108] Id.

[109] Id.

[110] De Long v. County of Erie, 60 N.Y.2d 296 (1983).

[111] Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981).

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] See New York City Administrative Code sec. 10-131, sec. 10301, ET.SEQ.

 

[117] U.S. State Pages and Reciprocity Maps, Hand Gun Law, available athttp://www.handgunlaw.us/.

[118] Id.

[119] Reciprocity is defined by Black’s Law Dictionary as the mutual concession of advantages or privileges for purposes of commercial or diplomatic relations. See Garner, supra note 14, at 1298. This means that Florida has not only enacted concealed carry laws, but Florida also recognizes concealed carry permits from other states.

[120]LaPierre, supra note 2, at 33.

[121] Id.

[122] UCR Offense Data, Florida Department of Law Enforcement, available athttp://www.fdle.state.fl.us/ Content/getdoc/bec493be-ffa6-4e34-be26-4e5e9bb50481/1960_fwd_totalcrime.aspx

[123] Id.

[124] Lott, supra note 1, at 75.

[125] Total number of Florida’s concealed weapons permits issued as of June 30, 2009, available athttp://licgweb. doacs.state.fl.us/stats/licensetypecount.html.

[126] Crime in Florida January – December 2008, Florida Department of Law Enforcement, available at http:// www. fdle.state.fl.us/Content/getdoc/4f6a6cd0-6479-4f4f-a5a4-cd260e4119d8/CIF_Annual08.aspx.

[127] Lott, supra note 1, at 46.

[128] Id.

[129] Id. at 58.

[130] See S. 845 Respecting States Rights and Concealed Carry Reciprocity Act of 2009, available athttp://www.foxnews.com/politics/2009/07/22/senate-vote-controversial-concealed-weapons-measure/; see alsohttp://www.nraila.org/Issues/FactSheets/Read.aspx?ID=18.

[131]LaPierre, supra note 2, at  26.

[132] Lott, supra note 1, at 3.

[133]Spitzer, supra note 52, at 58.

[134] Allan Bloom, The Republic of Plato (1968).

[135] Notes taken from Professor Rothbaum’s lecture on justice, Lawyers and Social Justice Seminar, Barry University School of Law, Summer 2009.

[136] Id.

[137] Id.

[138] Id.

[139]Samuel Fleischaker, From Aristotle to Adam Smith, A Short History of Distributive Justice 28, 29 (2004).

[140] Id.

[141] Poe, supra note 42, at 25.

[142]Spitzer, supra note 52, at 45.

[143] Legalizing Concealed Weapons Makes Society Safer, Gun Violence 60 (2002).

[144] Id. Abraham Tennenbaum is an Israeli Judge who used to be an official with the Israeli National Police and a professor of criminology. For more information on Tennenbaum, seehttp://www.saf.org/LawReviews/ KatesAndPolsby.htm; see alsohttp://www.nraila.org/Issues/Articles/Read.aspx?ID=72.

[145] Lott, supra note 1, at 19. “More guns equals less crime” is a catch phrase stemming from the title of John R. Lott’s More Guns, Less Crime.

[146] See Great Quotations of World War II, available athttp://www.skylighters.org/quotations/quots6.html.

[147] Lott, supra note 1.

[148] Id at 197.

[149]In Brian de Palma’s 1987 film, The Untouchables, Sean Connery echoes the very disadvantage gun control legislation gives to the victim as he points his gun at his would-be attacker and taunts him by saying, “Just like a wop to bring a knife to a gun fight.”

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