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utah-firearms-digest    Thursday, December 3 1998    Volume 02 : Number 114




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- ---------- Forwarded message ----------
Date: Tue, 1 Dec 1998 11:39:45 -0600 (CST)
From: John Johnson <[e-mail]>
Reply-To: [e-mail]
To: undisclosed-recipients:  ;, ";;"@Mailing-List.net
Subject: Fwd: John Lott on "Bogus Gun Lawsuits"

Posted to texas-gun-owners by [e-mail] (John Johnson)
- ------------------------------------------------------------------------
 ---- Begin Forwarded Article ----

 Cities Target Gun Makers in Bogus Lawsuits

 More people are killed by cars; more children drown or die in fires.

 As Printed in the LA Times 12/1/98

 By John R. Lott Jr., a fellow at the University of Chicago Law School.
 He is author of "More Guns, Less Crime: Understanding Crime and Gun
 Control Laws" (University of Chicago Press, 1998).

 Every product has illegitimate uses and undesirable consequences. In
 1996 in the U.S., car accidents killed 43,000 people and injured
 another 3.4 million; 950 children under the age of 15 drowned in pools
 and while boating; 500 children died in bicycle accidents, and more
 than 1,000 children died from residential fires. No one is yet
 proposing that state or city governments should recoup medical costs
 or police salaries by suing automobile or bicycle companies, pool
 builders or makers of home heaters. Such suits make as little sense as
 pool builders suing the government to recoup the health benefits from
 exercise.=20

 But suing manufacturers for any costs cities incur from gun injuries
 and deaths is exactly the theory behind the lawsuits by Chicago and
 New Orleans against gun makers. Gun control groups, which are helping
 organize the litigation, claim that as many as 60 cities will
 eventually sue. With so many simultaneous suits, the goal is not to
 win these weak cases in court but to bankrupt legitimate small
 companies through massive legal costs.=20

 Obviously, bad things happen with guns. But the suits ignore that guns
 also prevent bad things by making it easier for victims to defend
 themselves. With fewer than 1% of all guns ever used in crimes or
 causing death or injury, many other products have much higher
 probabilities of causing harm. Unlike the tobacco suits, gun makers
 have powerful arguments about the benefits of gun ownership.=20

 More than 450,000 crimes, including 10,744 murders, are committed with
 guns each year. But Americans also use guns defensively about 2.5
 million times a year, and 98% of the time merely brandishing the
 weapon is sufficient to stop an attack.=20

 Police are important in reducing crime rates, but they virtually
 always arrive after a crime has been committed. When criminals
 confront people, resistance with a gun is by far the safest course
 of action. Guns help offset the strength differential between male
 criminals and female victims. The chances of serious injury from an
 attack are 2.5 times greater for women offering no resistance than
 for those resisting with guns.=20

 My own research has found that increased gun ownership rates are
 associated with lower crime rates. Poor people in the highest crime
 areas benefit the most from owning guns. Lawsuits against gun makers
 will raise the price of firearms, which will most severely reduce gun
 ownership among the law-abiding, much-victimized poor.=20

 A 1996 survey by the National Assn. of Chiefs of Police found that
 93% of 15,000 chiefs and sheriffs questioned thought that law-abiding
 citizens should be able to buy guns for self-defense. If mayors really
 believe that guns produce no benefits, there is one simple way they
 can demonstrate this: Disarm their bodyguards. It is hypocritical for
 mayors to demand that poor people live in high crime areas without
 being able to own guns, while the mayors would never enter these areas
 without armed guards.=20

 Chicago claims that the gun makers made their weapons attractive to
 gang members through low price, easy concealability, corrosion
 resistance, accurate firing and high firepower. Lightweight,
 concealable guns may help criminals, but they also have helped protect
 law-abiding citizens and lower crime rates in the 43 states that allow
 concealed handguns. Women benefit most and also find it easier to use
 smaller, lightweight guns.=20

 The New Orleans suit seeks to hold gun makers liable because
 accidental deaths are "foreseeable" and not enough was done to make
 guns safe. It is particularly concerned with accidental deaths
 involving children and cites three cases in New Orleans since 1992.
 Nationally, 30 children under 5 and 200 under 15 died from accidental
 gun deaths in 1996. Yet with 80 million people owning 200 million to
 240 million guns, accidental deaths from guns are far less
 "foreseeable" than from many other products. Gun owners must
 be very responsible, or such gun accidents would be much more
 frequent.=20

 Allowing the court system to ignore a product's benefits to society is
 bad enough. Yet even worse is the cynical attempt to file bogus
 lawsuits and use taxpayers' dollars to impose massive legal costs that
 render it infeasible for defendants to defend themselves. - - -=20

 John R. Lott Jr., a Law and Economics Fellow at the University of
 Chicago School of Law, Is the Author of "More Guns, Less Crime:
 Understanding Crime and Gun Control Laws" (University of Chicago
 Press, 1998)
                             -30-
                <http://www.tsra.com/Lott9.htm>

 "After a shooting spree, they always want to take the
 guns away from the people who didn't do it.  I sure as
 hell wouldn't want to live in a society where the only
 people allowed guns are the police and the military."
 --William Burroughs

 "Gun Control: the political AIDS of a free society"
 --Ian Underwood, 13Sep98

 "As Professor Lott discovered, gun ownership deters crime.
 But what will deter liberals? Certainly not the facts.
 They have too much invested in their vision of themselves
 as the saviors of us all."
 --Thomas Sowell, June 29, 1998
- --=20
 John Johnson
 [e-mail]

- --
For help with Majordomo commands, send a message to majordomo@mailing-list.=
net
with the word help in the message body.



- -

------------------------------

Date: Tue, 01 Dec 98 19:11:00 -0700
From: [e-mail] (SCOTT BERGESON)
Subject: FW: Shut the gun registration machine down!!

- ---------- Forwarded message ----------
To: [e-mail]
From: spiker <[e-mail]>
Subject: Shut the gun registration machine down!!

To All,

Today, 11/30/98 is the first day of the new long gun registration scheme.

We can shut it down by tying up their phone lines.

Call *67 1-877-FBI-NICS or (*67 (877-324-6427) and ask for a press
release for your community newspaper.



- -

------------------------------

Date: Tue, 01 Dec 98 19:11:00 -0700
From: [e-mail] (SCOTT BERGESON)
Subject: Hypothetical incidents? Try real ...

- ---------- Forwarded message ----------
Date: Mon, 30 Nov 1998 05:44:56 -0700
From: "Richard L. Partridge" <[e-mail]>
To: [e-mail], [e-mail]

It is "overwhelmingly clear" that disarming potential victims will not
deter a criminal intent on harming others in a church, a school, or
anyplace else. Those who claim that victim disarmament laws will protect
us are either woefully ignorant or have ulterior motives. There exists
an abundant number of instances of unarmed victims being killed, injured,
or taken hostage by criminals who quite obviously care nothing about the
law. (The Cody, Wyoming school incident comes immediately to mind.)

Politicians who think they can change criminal human nature with a wave
of their legislative hand are dangerous. The best deterrent to armed
criminals is the knowledge that their victim/s may be armed. I recently
lived in Maryland for a year and, as I wrote my Maryland state senator,
I felt much safer in Utah where all my neighbors were armed.

Richard L. (Dick) Partridge, 1998 Libertarian Candidate
Utah State Senate District 24
4480 N. Hwy 38, Brigham City, Ut 84302
435-734-2678

On Sat, 28 Nov 1998 17:40:51 EST [e-mail] writes:

Limits on guns may pass in 1999
By Bob Bernick Jr.
<http://deseretnews.com/staff/card/1,1228,9,00.html
Deseret News political editor

Another attempt will be made during the Legislature's 1999 general
session to give church congregations and public school administrators
the power to ban all weapons - permitted or not - from their property.

House Minority Leader Dave Jones, D-Salt Lake, will make the latest
run at changing Utah's concealed-weapons permit laws. Current law
says people who get concealed-weapons permits can carry them without
restriction except for several specific areas - such as prisons,
courtrooms and airports. He's optimistic that a change in House
leadership will give his gun-banning side a better shot at success.

"So what else is new?" says Elwood Powell, chairman of the Utah
Shooting Sports Council, which has battled this issue for several
years. Such banning of weapons to law-abiding, permit-carrying
citizens "is a violation of the Utah Constitution's guarantee of
the right to defend ourselves," says Powell.

Jones says it is "overwhelmingly clear" from any number of public
opinion polls that most Utahns want guns banned from churches and
schools. A Deseret News poll conducted earlier this year shows that
93 percent favor concealed weapons being banned from public schools,
90 percent want them banned from churches.

"It has been a lack of political will - not public support" that has
doomed the concealed-weapons changes before, says Jones.

House Speaker Mel Brown, R-Mivale, is stepping down from that
leadership role in the 1999 Legislature. While Brown denies it - and
Senate President Lane Beattie won't say it either - it is generally
believed that Brown's opposition to a similar bill drafted by Beattie
in the 1998 general session was the reason Beattie pulled his bill
before it was even given a public hearing.

Beattie, R-West Bountiful, said at the time only that the bill had
little chance of passage in the House, so why waste time on the
controversial measure.

A speaker has the power to hold a bill or send it to a standing
committee where it may have little chance of passage.

"I'm encouraged" that the new House GOP leaders will judge his bill
on a reasonable basis, Jones said.

To give "these two exemptions to the (concealed) weapons law is just
plain common sense," says Jones. Why should the place where "we take
care of the most vulnerable among us - our children - and the house
of the Creator" not be protected from handguns? Jones asks.

But Powell looks at it differently.

If a constitutional right is denied, someone must step up to ensure
that the right is not needed. And someone must pay the costs if that
right is denied.

He asks who is going to pay the cost of a life-long suffering if
persons threatened by others can't defend themselves and are harmed?
"Who is going to pick up the social cost" of someone paralyzed for
life when they could have fought off an aggressor? "Will it be the
state, the taxpayers? I believe people should think about that one."

A number of school districts have already issued personnel rules that
ban all weapons from schools. Exceptions are usually made for law
enforcement officers, and Jones says his bill will allow officers to
carry guns on school grounds.

Gov. Mike Leavitt - through his personnel department - has also
issued regulations banning state employees from carrying weapons,
including properly permitted concealed weapons, from state buildings,
grounds and vehicles. Again, state law-enforcement officers are exempt.
And the State Hospital, where mentally ill people are confined and
treated, this year issued new rules and guidelines on carrying weapons
there. No one has challenged churches that may want to ban weapons from
their buildings.

Some legislators are saying nothing really has to be done - that
offended citizens who don't like state personnel guidelines, school
policies or actions by churches can go to court.

But Jones believes the matter should be clearly outlined in state law.
"Anyone can create a hypothetical incident for any situation - a woman
teacher is attacked by an abusive husband in school or whatever. But
why in the world do we need guns in schools and churches? It makes no
sense at all to say that guns should be allowed to be taken anywhere."


- -

------------------------------

Date: Wed, 2 Dec 1998 16:37:10 -0700
From: [e-mail] (Charles Hardy)
Subject: DesNews Poll

Thanks to all those who have taken the time to register your opinion
with the on line poll.  It looked pretty grim yesterday when I first
saw it with well over 60% of those responding favoring limiting CCW.
By this morning the numbers had taken a nice shift in our favor with
52% of respondants opposing laws restricting CCW.  Currently, 6% favor
banning CCW from schools only, 0% (13 votes) favor banning guns from
churches only, and 42% favor banning guns from both churches and
schools.

If you or any gun friendly folks you know haven't taken the time to
register your opinion yet, please take just a moment and do so at
<http://www.desnews.com>.  The poll is on the right side of the page
about 1/2 to 3/4 of the way down.  I don't think it will let you vote
more than once, but if you haven't voted yet, please do.

Obviously, if the numbers stay in our favor, they'll never report
them, but if any less than 51% of the total respondants vote for no
restrictions, you can bet they'll spin it against us like "The
majority of respondants favor restricting guns from schools or
churches."  Please make sure the numbers stay in our favor.  It will
be one less poll they can goad legislators with and I can pass along
good numbers to a friendly legislator to diminish support for futher
restrictions.

- --

Charles C. Hardy        | If my employer has an opinion on
<[e-mail]>            | these things I'm fairly certain
801.588.7200 (work)        | I'm not the one he'd have express it.

"The people of the various provinces are strictly forbidden to have in
 their possession any swords, bows, spears, firearms, or other types of
 arms. The possession of these elements makes difficult the collection of
 taxes and dues, and tends to permit uprising. Therefore, the heads of
 provinces, official agents, and deputies are ordered to collect all the
 weapons mentioned above and turn them over to the government." --
 Toyotomi Hideyoshi, Shogun, August 29, 1558, Japan.

- -

------------------------------

Date: Wed, 2 Dec 1998 17:28:25 -0700
From: [e-mail] (Charles Hardy)
Subject: From today's DesNews' OpEd page


            Wednesday, December 02, 1998



            Comparing guns, cars is inaccurate
            By Mark Johnson
            Media General News Service
                  WASHINGTON ù In the national debate over firearms, supporters
            of tighter gun laws frequently draw the comparison between guns and
            cars.
                  "Like cars, guns are dangerous," said Handgun Control Inc.
            officials in a 1994 proposal for a new gun law titled "Brady II."
            "Cars are not designed to kill and yet are heavily regulated: You
            must be of a minimum age, take a training course, pass a proficiency
            test, get a license, obtain insurance, and the car must be
            registered. And automobile manufacturers are subject to stringent
            safety regulations.
                  "Guns carry none of these restrictions. In the interest of
            saving lives, Brady II would require gun owners and manufacturers to
            adopt safety measures similar to those required of car owners and
            manufacturers."
                  At a conference of the American Society of Criminology in
            Washington this month, a college professor raised his hand and told
            a panel of experts he had never heard a good answer to the question
            of why guns are not regulated like cars, with registration and
            licensing.
                  The contention here is that the government regulates cars more
            heavily than guns and that firearms, given their lethality, should
            be raised to at least the same level of restrictions.
                  It's a point that is inaccurate and one that gun control
            supporters may find thrown right back at them.
                  National Rifle Association members and other gun enthusiasts
            likely would be eager to embrace a plan that puts pistols and
            shotguns on the same regulatory plane as minivans and sport utility
            vehicles. Consider some of the effects:
                  A customer with a felony conviction unrelated to firearms
            could still get a gun license, just as, for example, a conviction
            for bank robbery does not prohibit anyone from getting a driver's
            license.
                  A 16-year-old could buy a gun in most states.
                  Since car owners can drive any vehicle they want on their
            private property in any manner they wish (including while stone cold
            drunk with un-seat belted small children in the car), a gun owner
            could keep any type of firearm they wanted on their private property
            and handle it as recklessly as they like.
                  A Virginia driver's license allows a driver to operate a car
            in any state. So a gun license would allow a firearms owner to take
            his Glock .9mm pistol on that trip to Florida.
                  "Treating guns like cars would be massive gun decontrol," said
            Dave Kopel, an adjunct professor at New York University Law School
            who has written for NRA publications. "The day they start treating
            guns like cars, every Second Amendment supporter in this country is
            going to throw a party."
                  The theory that what's good for cars is good for firearms
            falls apart when pushed beyond the sloganeering. Driving and owning
            a car is more loosely regulated and owning a gun is more strictly
            regulated than the comparison suggests.
                  Handgun Control's Robin Terry said the "Brady II" proposal is
            not an argument for equal treatment among guns and cars but an
            effort to familiarize the public with the ideas of licensing and
            registration.
                  Like so many disputes in the persistent national debate over
            guns, this one demonstrates that the simple approaches sound
            reasonable but turn out fairly complex.



            Mark Johnson covers the Justice Department and Supreme Court for
            Media General News Service.






World & Nation + Utah + Sports + Business + Opinion + Front page




- --

Charles C. Hardy        | If my employer has an opinion on
<[e-mail]>            | these things I'm fairly certain
801.588.7200 (work)        | I'm not the one he'd have express it.

"Americans have the right and advantage of being armed - unlike the
 citizens of other countries whose governments are afraid to trust the
 people with arms." -- James Madison, The Federalist Papers #46 at 243-
 244

- -

------------------------------

Date: Wed, 2 Dec 1998 17:29:39 -0700
From: [e-mail] (Charles Hardy)
Subject: WW in DN--War Between the States

            Wednesday, December 02, 1998


            Civil War was about controls, not slavery
            By Walter Williams

                  The problems that led to the Civil War are the same problems
            today ù big, intrusive government. The reason we don't face the
            specter of another Civil War is because today's Americans don't have
            yesteryear's spirit of liberty and constitutional respect, and
            political statesmanship is in short supply.
                  Actually, the war of 1861 was not a civil war. A civil war is
            a conflict between two or more factions trying to take over a
            government. In 1861, Confederate President Jefferson Davis was no
            more interested in taking over Washington than George Washington was
            interested in taking over England in 1776. Like Washington, Davis
            was seeking independence. Therefore, the war of 1861 should be
            called "The War Between the States" or the "War for Southern
            Independence."
                  History books have misled today's Americans to believe the war
            was fought to free slaves. Statements from the time suggest
            otherwise. In President Lincoln's first inaugural address, he said,
            "I have no purpose, directly or indirectly, to interfere with the
            institution of slavery in the states where it exists. I believe I
            have no lawful right to do so."
                  During the war, in an 1862 letter to New York Daily Tribune
            editor Horace Greeley, Lincoln said, "My paramount object in this
            struggle is to save the Union, and it is not either to save or
            destroy slavery."
                  Lincoln's intentions, as well as that of many Northern
            politicians, were summarized by Stephen Douglas during the
            presidential debates. Douglas accused Lincoln of wanting to "impose
            on the nation a uniformity of local laws and institutions and a
            moral homogeneity dictated by the central government" that "place at
            defiance the intentions of the republic's founders." Douglas was
            right, and Lincoln's vision for our nation has now been accomplished
            beyond anything he could have possibly dreamed.
                  A precursor for a War Between the States came in 1832, when
            South Carolina called a convention to nullify tariff acts of 1828
            and 1832, referred to as the "Tariffs of Abominations." A compromise
            lowering the tariff was reached, averting secession and possibly
            war.
                  The North favored protective tariffs for its manufacturing
            industry. The South, which exported agricultural products to and
            imported manufactured goods from Europe, favored free trade and was
            hurt by the tariffs. Plus, a Northern-dominated Congress enacted
            laws similar to Britain's Navigation Acts to protect Northern
            shipping interests.
                  Shortly after Lincoln's election, Congress passed the highly
            protectionist Morrill tariffs. That's when the South seceded,
            setting up a new government. Its constitution was nearly identical
            to the U.S. Constitution except that it outlawed protectionist
            tariffs, business handouts and mandated a two-thirds majority vote
            for all spending measures.
                  States should again challenge Washington's unconstitutional
            acts through nullification. But you tell me where we can find
            leaders with the love, courage and respect for our Constitution like
            Thomas Jefferson, James Madison and John C. Calhoun.
            Creators Syndicate Inc.






World & Nation + Utah + Sports + Business + Opinion + Front page





- --

Charles C. Hardy        | If my employer has an opinion on
<[e-mail]>            | these things I'm fairly certain
801.588.7200 (work)        | I'm not the one he'd have express it.

"Americans have the right and advantage of being armed - unlike the
 citizens of other countries whose governments are afraid to trust the
 people with arms." -- James Madison, The Federalist Papers #46 at 243-
 244

- -

------------------------------

Date: Wed, 02 Dec 98 23:31:00 -0700
From: [e-mail] (SCOTT BERGESON)
Subject: LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS 1/3

- ---------- Forwarded message ----------
Date: Mon, 30 Nov 1998 21:41:49 -0500
From: "Mark A. Smith" <[e-mail]>
To: SNET <[e-mail]>, David Rydel <[e-mail]>,
    L & J <[e-mail]>

http://www.constitution.org/leglrkba.txt

LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS
Copyright (c) 1994 Constitution Society. Permission is granted to
copy with attribution for noncommercial purposes.

There is considerable confusion about the legal theory underlying
the "right to keep and bear arms". This is a brief outline for a
clarification of the discussion of this issue.

(1) The Second Amendment to the U.S. Constitution does not
establish the right to keep and bear arms. None of the provisions
of the Constitution establish any "natural" rights. They recognize
such rights, but the repeal of such provisions would not end such
rights. Such rights were considered by many of the Framers as
obvious or "self-evident", but they were immersed in the prevailing
republican thought of the day, as expressed in the writings of
Locke, Montesquieu, Rousseau, Madison, Hamilton, and others, which
discussed "natural rights" in some detail. Others argued that at
least some of the rights needed to be made explicit in the Bill of
Rights to avoid having future generations with less understanding
of republican theory weaken in their defense of those rights. That
has turned out to have been a good idea.

(2) The right to keep and bear arms is a natural right of individuals
under the theory of democratic government. This was clearly the
understanding and intent of the Framers of the U.S. Constitution and
was a long-established principle of English common law at the time
the Constitution was adopted, which is considered to be a part of
constitutional law for purposes of interpreting the written Constitution.

(3) What the Second Amendment also does is recognize the right,
power, and duty of able-bodied persons (originally males, but now
females also) to organize into militias and defend the state. It
effectively recognizes that all citizens have military and police
powers, and the "able-bodied" ones -- the militia -- also have
military and police duties, whether exercised in an organized
manner or individually in a crisis. "Able-bodied" is a term of
art established by English common law at the time the Constitution
was adopted, and is the only qualification besides citizenship on
what constitutes the "militia". While not well defined in modern
terms, it is somewhat broader than just able-"bodied": implicit is
also "able-minded" and "virtuous". In other words, persons might
be excluded who were physically able to bear arms but who were
mentally or morally defective. Defense of the "state" includes
self-defense and defense of one's family and friends who are,
after all, part of the state, but by establishing the defense of
the state as primary a basis is laid for requiring a citizen to
risk or sacrifice his life in defense of the state and is thus
a qualification on the implicit right of self-defense, which is
considered to prevail in situations in which self-sacrifice is
not called for.

(4) The U.S. Constitution does not adequately define "arms". When
it was adopted, "arms" included muzzle-loaded muskets and pistols,
swords, knives, bows with arrows, and spears. However, a common-law
definition would be "light infantry weapons which can be carried and
used, together with ammunition, by a single militiaman, functionally
equivalent to those commonly used by infantrymen in land warfare."
That certainly includes modern rifles and handguns, full-auto
machine guns and shotguns, grenade and grenade launchers, flares,
smoke, tear gas, incendiary rounds, and anti-tank weapons, but not
heavy artillery, rockets, or bombs, or lethal chemical, biological
or nuclear weapons. Somewhere in between we need to draw the line.
The standard has to be that "arms" includes weapons which would
enable citizens to effectively resist government tyranny, but the
precise line will be drawn politically rather than constitutionally.
The rule should be that "arms" includes all light infantry weapons
that do not cause mass destruction. If we follow the rule that
personal rights should be interpreted broadly and governmental
powers narrowly, which was the intention of the Framers, instead
of the reverse, then "arms" must be interpreted broadly.

(5) The right to keep and bear arms does indeed extend to the
states. As do the other rights recognized by other Amendments,
and as reinforced by the Fourteenth Amendment. It is not just a
restriction on the powers of the central government. On the other
hand, the citizens of a state can adopt a constitution that might
restrict the exercise of such rights by delegating the power to
do so to the state government. However, if the restriction of
natural rights is unduly burdensome on those rights, then such a
provision would be incompatible with the U.S. Constitution, its
guarantee of the rights, and its guarantee that all states have a
"republican" form of government - which such restrictions would
compromise.

(6) The legal basis for a government not infringing on the right
to keep and bear arms is not constitutional provisions like the
Second Amendment, but that the power to do so is not one of the
enumerated powers delegated to the government, whether Union or
State. That delegation must be explicit as pertains to arms. They
can't be regulated on the basis of general powers to tax or to
regulate commerce. Arms have a special status under constitutional
law. Some State constitutions may delegate such powers to the
State government. The U.S. Constitution does not delegate such
powers to the Union government. No powers are delegated to
government by the preamble to a constitution, which is only a
statement of purpose, only by provisions in the body of the
document and its amendments.

(7) The legal basis on which the states can regulate arms is in
those situations in which they conflict with property rights. It
is a fundamental principal in law that the owners or managers of
real property have the power to regulate who may enter their
premises, and to set conditions upon their entry. That includes
public property. Citizens have a right to keep and bear arms --
on their own property or property they control -- but not on
someone else's property without his permission.
[ Continued In Next Message... ]




- -

------------------------------

Date: Wed, 02 Dec 98 23:31:00 -0700
From: [e-mail] (SCOTT BERGESON)
Subject: LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS 2/3

[ ...Continued From Previous Message ]
(8) In other words, citizens have a right to keep and bear arms
in those places and situations where they have a right to be,
unless such rights are disabled by due process of law.
Fundamental natural rights can never be lost, as contractual
rights can be, only the exercise of those rights restricted or
"disabled", to use the legal term. The distinction is very
important. Natural rights are those which the individual brings
with him when he enters into the social contract, and reclaims if
the social contract is broken. The right to keep and bear arms is
such a natural right, as is the right of free speech, religious
belief, and privacy. The alternative is a contractual right
created by a contract, such as the social contract. The right to
vote or to be judged by a jury of one's peers are examples of
rights created by the social contract, albeit important ones that
are also constitutionally protected. Because they are constitutionally
protected, it is only proper to speak of them as disabled, rather
than lost, so long as the subject remains a citizen or natural person,
depending on whether it is a right of citizenship or personhood.

(9) It is unconstitutional to "disable" any rights by statute
except one set: the rights of majority. The disabilities of
minority do not need to be established by a court trial or
hearing. However, they can be removed sooner than they would be
removed by constitution or statute, by reaching a certain age.
This means it is unconstitutional to disable the right to keep
and bear arms to a class of persons by statute, including those,
such as felons, who have been the subject of due process on
another issue, except through a proceeding in which the court is
explicitly petitioned to disable them, the subject has an
opportunity to argue to the contrary, the petitioner has the
burden of proof that the subject if armed would be a threat to
himself or others, and the court grants that petition. Merely
being convicted of a crime, or declared mentally incompetent, is
not sufficient if the language of the judgment does not also
explicitly disable the right to keep and bear arms, or set
restrictions on such right.

(10) "General police powers" is not a constitutional basis for
states or localities to regulate arms. "General police powers"
are the powers to use the means necessary and sufficient to stop
someone who threatens to commit a major crime, or to arrest
someone who has done so. All citizens have such power. They
differ from regular, professional police only in that the regular
police also have "special police powers" in matters such as minor
offenses, and in that they outrank civilians. Since citizens have
general police powers, they also have the right to such means as
they require to exercise such powers in situations in which they
may be called upon to do so. That includes arms.

(11) To be constitutional, state laws restricting the bearing of
arms must distinguish between public property, private commercial
property which serves the public and which therefore confers
certain rights to the public, and other private property with no
public access rights. It is reasonable and constitutional to
prohibit persons from bearing arms onto purely private property
without notifying the owner or manager and obtaining his or her
permission, except over public easements, such as sidewalks or
the walkway from the street to the front door. On the other hand,
it would be an undue burden on the right to bear arms to forbid
persons from traveling between places where they have a right to
be, and to bear arms while they do so, along public pathways or
private easements, and using their own or a public means of
transportation. It may not, however, be an undue burden to
prohibit the bearing of arms onto certain public property where
persons do not have unrestricted access, such as office buildings
and auditoriums, provided that authorities guarantee the safety
of persons who enter unarmed. Owners of commercial property
serving the public which confers some rights of access to the
public may prohibit the bearing of arms by posting or giving a
notice to that effect, but lacking such notice, bearing arms onto
the premises would be permitted. The rule must be that laws must
not burden the right to bear arms except to the extent that they
would impose a greater burden on the right of property owners to
exclude persons bearing arms.

(12) The law must presume that places of business that cater to
arms, such as gun shops and shooting ranges, and events such as
gun shows, offer presumptive permission to bear arms and that
therefore it is not illegal to bear them there or to travel to
and from them.

(13) A carry permit system essentially is a removal of restrictions
against bearing arms on public and private property unless there
is an express prohibition against doing so, either in the form
of a posted sign or a directive from the owner or his agent. The
rationale for issuing such permits is to equip persons of good
character to more effectively function as militiamen or police
in situations in which regular police are not available or
insufficient. That also includes self-protection, but the key
factor is the duty to perform police duties as necessary. There
also needs to be explicit statutory protection of the state or
other permit issuing authority against criminal or civil
liability for any acts done by the permit holder. One kind of
carry permit is that which is one of the "special police powers"
of regular law-enforcement officers, which allows them to carry
anywhere, even against the express wishes of a property owner.

(14) With the high levels of crime we now endure, the only
effective way to extend police protection to a level that might
deter crime is to recruit a substantial proportion of the public
to go armed, by issuing them carry permits, offering them police
training, and organizing them into a network of militia units
closely coordinated with regular law enforcement agencies. It is
likely that as many as 25% of the adult public could serve in
this way on a regular basis, and another 25% on an occasional
basis, and that if they did, we might expect it to have a
significant positive impact on crime. Some such citizens might
even be granted higher police rank, and perform regular police
duties on a part-time basis. Such involvement of the public in
law enforcement would also have other benefits: breaking down the
social and psychological barriers that now separate the regular
police from civilians, and deterring some of the abuses of
authority that police have sometimes fallen into.
[ Continued In Next Message... ]




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Date: Wed, 02 Dec 98 23:31:00 -0700
From: [e-mail] (SCOTT BERGESON)
Subject: LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS 2/3

[ ...Continued From Previous Message ]
(15) That the militia should be "well-regulated" is not a basis for
restricting the keeping or bearing of arms. The term originally
meant "self-regulated" and militias could be independent of state
or national authority if not called up by such authority. Militia
members may be required to carry certain standard arms during
formations, but they cannot be forbidden from carrying additional
arms of their own unless doing so would impair normal militia
operations. State-appointed officers may direct when, where and
in what manner members of the militia are to train and perform
their duties, but may not forbid them to meet on their own.

(16) The Union government has the power, under the U.S.
Constitution, to regulate imports and interstate commerce in
arms, but the Framers would not agree with how the "interstate
commerce" clause (Art. 1, Sec. 8) of the Constitution has been
broadly interpreted to include regulation of manufacture,
possession, and local sales and use of items. A strict constitutional
interpretation requires that the Union government has authority
only over transactions that cross state lines, and not over actions
or transactions that occur within state borders, even if they
involve items that may someday cross state borders or may have once
done so. If we want the Union government to have such authority,
and a good case can be made for that, then the U.S. Constitution
needs to be amended to delegate that authority to it.

(17) The Union government also has excise taxing power, but since
arms have special status under the Constitution, no tax may be
levied that imposes an undue burden on the right to keep and bear
arms. Rights are more fundamental than taxing powers, particularly
since the right to keep and bear arms is recognized in an amendment
which supersedes any prior provisions that conflict with it, which
includes all taxing powers except the income tax (which does not
provide a basis for taxing arms). Arms may be taxed as general
merchandise is, such as with a sales tax, but any tax law which
specifies arms for special taxes, other than reasonable use
fees for public services related to them, must be considered
unconstitutional. That would include taxes on ammunition and
the ingredients to make it. The analogy is to taxes on newsprint,
which may be taxed like other merchandise, but not in a way that
would impose an undue burden on the right of a free press.

(18) This means that no government has the power, unless that
power is specifically granted to it under its constitution, to
prohibit any person from manufacturing or possessing any gun or
ammunition for it on his own premises or where he has a right to
be, or against using it in a safe and responsible manner, or
against selling or giving it to another person within the borders
of a state.

(19) Since the common law prevailing at the time the Constitution
was adopted defined "militia" to consist of "able-bodied" citizens,
including persons younger than the usual age of majority, any law
restricting the possession, sale or gift of guns or ammunition to
persons under the age of majority or any other particular age, or
to minors (since persons under the age of majority may have their
disabilities of minority removed by a court), is also unconstitutional,
unless the constitution explicitly includes a disability of the
right to keep and bear arms among the disabilities of minority.
The proper test for being "able-bodied" must involve meeting certain
standards that are independent of age, such as skill, judgement, and
level of maturity. It is possible for persons to be "able-bodied" at
quite a young age, and the law must recognize that competence where
it exists. All citizens above the age of majority would have to be
presumed able-bodied unless they or the state petitioned a court to
rule otherwise and it granted the petition. However, it would be
constitutional to require a reasonable test of competence to citizens
below the age of majority, and to issue credentials to those
qualifying which they would be required to show when answering calls
of the militia or, if the right to keep and bear arms were included
among the rights disabled by minority, when bearing arms. Early
removal of the disabilities of minority would then also remove the
disabilities of the right to keep and bear arms.

(20) The "full faith and credit" clause of the U.S. Constitution
requires that persons issued a carry permit by one state must
have that permit recognized in other states. This suggests a
uniform standard for qualifying persons for issuance.

REFERENCE: Stephen P. Halbrook, That Every Man be Armed, available
from The Independent Institute, 134 98th Av, Oakland, CA 94603,
510/568-6047.

Constitution Society, 6900 San Pedro #147-230, San Antonio, TX
78216, 210/224-2868


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End of utah-firearms-digest V2 #114
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