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   The Right to Keep and Bear Arms -- A Primer for Physicians
   (C) by Edgar A. Suter MD                DRAFT     DRAFT
   Chair, Doctors for Integrity in Research & Public Policy
   CIS:73407,3647 (uploaded at Dr. Suter's request)

   Abstract

   To palliate violence in our society some medical societies
and journals have proposed draconian gun restrictions and
prohibitions. The individual Right to Keep and Bear Arms as
an impediment to such proposals has usually been overlooked
or denied. This article discusses historical and contemporary
case law and scholarship regarding the right. Of particular
concern are constitutional and natural rights protections of
the right to arms.

   Introduction

   A few professional societies(1,2) and editors(3) have
proposed bans and draconian restrictions on the private
ownership of certain classes of firearms. If constitutional
impediments to these proposals are discussed at all, the
obstacles are offhandedly or incorrectly dispatched. It is
instructive to review a representative example of
misinformation, the recent American Journal of Public Health
article by gun control advocates, Vernick and Teret.(4) Those
authors asserted that "the Second Amendment poses no real
obstacle to the implementation of even broad gun control
legislation." Like most gun prohibitionists, Vernick and
Teret failed to acknowledge key elements in the debate on the
Right to Keep and Bear Arms (RKBA). The US Supreme Court has
repeatedly upheld the individual Right to Keep and Bear Arms
-- explicitly protecting an individual right to keep and bear
military style weapons -- and rejected the 20th. Century
invention, the discredited "collective right only" theory of
the Second Amendment. Considerable legal scholarship also
supports an individual Right to Keep and Bear Arms.on grounds
other than the Second Amendment.
   Vernick and Teret's erroneous contention that there is no
individual right to arms descended from a common
misunderstanding of "militia." Importantly, they failed to
note that in federal law and US Supreme Court holdings, the
"militia" is not an organized group, it is a system in which
individual citizens, a pool of military-age men armed with
their own weapons, are available to serve the collective
defense.  The linchpin of the "collective right only"
argument falls.
   Citing holdings of the US Supreme Court out-of-context,
Vernick and Teret furthered their deception by claiming
solace in the US Supreme Court's refusal to hear certain
lower court cases. Not only were Vernick and Teret out of
touch with case law, they were unfamiliar even with the
contemporary legal literature. Of 37 articles on the RKBA in
the legal literature since 1980, 33 support the individual
right view and dispute the "collective right only" view of
the RKBA.(5) Of the remaining pathetic minority of 4
articles,(6) 2 were written by an employee of Handgun Control
Inc., one by a non-attorney lobbyist for the National
Coalition to Ban Handguns, and only one was a peer reviewed
article. Is the legal literature held captive by that bÉte
noire, the National Rifle Association (NRA)? Are so many
legal scholars mere lackeys of Satanic, blood-thirsty,
profiteering gun manufacturers? Or, is  the NRA, as a civil
rights advocacy group over a century old and supported by
over 3.3 million members, on solid ground in defending the
individual RKBA?
   Eschewing the bigotry and emotive imagery that too
frequently characterizes the debate,(7) let us review
relevant concerns. Is there any RKBA at all? What do the US
Constitution and the Bill of Rights say? Who are "the
people"? What is the "militia"? What have the courts said?
What do legal scholars say? What historical evidence is
there? If there is an individual RKBA, what guns does it
protect? How far can "gun control" go? This article strives
to provide the best answers possible based on contemporary
and historical resources.
   The purpose of this article is not to discuss the merits
or demerits of gun ban proposals; instead this article will
consider whether or not such proposals, if implemented, would
likely be found constitutional. It would not be productive
for the medical community to expend time, effort, and money
promoting measures likely to be discarded by the courts, even
if proponents became able to demonstrate a significant public
health benefit from their proposals. For example, though the
public health evidence suggests that outlawing television
would save lives, courts would not allow such a "prior
restraint" violation of First Amendment rights, and the
public health community would be wasting resources to pursue
such advocacy. Interestingly, while the criminological
literature has, after decades of research, rejected the
hypothesis that guns and gun ownership cause violence, there
is increasing literature that indicts violent television and
sensationalized journalism as a cause of crime.(8-11)
   For assessment of the merits or demerits of gun ban
proposals, the reader is referred to any of the comprehensive
reviews of the subject, such as the National Institute of
Justice studies,(12,13) the review by Kleck (that in 1993 won
the American Society of Criminology's Hindelang Award as "the
most important contribution to criminology in three
years"),(14) the cross cultural or other analyses by
Kopel(15,16,17)  or Kates,(18) the assault weapon monograph
by Suter,(19) and the study of violence and homicide
reduction asociated with concealed weapon carriage by good
citizens.(20) Those readers familiar only with the medical
literature on guns should review the criticisms of
methodology and conclusions,(21) documentation of
"sagecraft,"(22) false citations, fabrication of data, and
other "overt mendacity" in the medical literature on
guns,(23) and thorough reviews of Centers for Disease Control
(CDC) bias.(24,25)

   Right to Keep and Bear Arms -- the Second Amendment

   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. -- Second Amendment, US
Constitution

      the Second Amendment

   Gun prohibition advocates claim the reference to "Militia"
affirms only a states' right to maintain organized armed
forces as an outmoded check upon federal power.(4,26) That
claim does not survive examination of: 1. the Supreme Court's
contextual and linguistic examination of the term "the
people," 2. the pre-emptive federal definition of "militia,"
or 3. the history and commentary on the Bill of Rights.

      who are "the people"?

   Do the First Amendment rights of "the people" refer only
to a "states' right" to freedom of speech, press, religion,
assembly, and petition the government to redress grievances?
Do the Fourth Amendment rights of "the people" actually refer
to a "states' right" to be secure in "their persons, houses,
papers, and effects against unreasonable searches and
seizures"? Do the Ninth and Tenth Amendment unenumerated and
reserved rights of "the people" actually refer to "states'
rights"?
   Since each instance distinguishes between "the people" and
the government, it is impossible to make a credible argument
that these are "states' rights" rather than individual rights
-- and so the courts have ruled. To claim that "the people"
who have the RKBA are actually the state governments and not
the same "the people" who have First, Fourth, Ninth, and
Tenth Amendment protections requires some rather unlikely
assumptions. Did the authors of the Bill of Rights use the
term "the people" in the First Amendment to refer to
individuals, then, 28 words later, use the term "the people"
in the Second Amendment to refer to the government, then, 44
words later, use the term "the people" in the Fourth
Amendment and four and five articles later, in the Ninth and
Tenth Amendments, to refer to the individual?
   The US Supreme Court has rejected such convoluted logic.
In US v. Verdugo-Urquidez,(27) a case holding that Fourth
Amendment protections do not apply to the search of a home in
a foreign country, the Supreme Court held that "the people"
who have the right to free speech, to peaceably assemble, and
to be secure in their papers and effects are one and the same
as "the people" who have the right to keep and bear arms. The
authors of the Bill of Rights did not somehow confuse "the
people" with "the government." "People" have rights and the
"government" has powers . Importantly, rights are not
"granted" by the Constitution. Rights are pre-existent and
irrevocable, guaranteed by the Constitution, and, hopefully,
respected and protected by the government. History shows,
however, that government respect and protection of individual
rights, at the expense of its own power, is the exception,
rather than the rule. At one time, the US was a shining
exception. Now, having forgotten the lessons of history, the
view holds sway that individual rights, individual
responsibility, excellence, and freedom must yield to order,
dependency, collectivism, egalitarian mediocrity, and
expediency. The current administration's "communitarian"
philosophy subordinates the individual to the state, a view
that is antithetical to the founding principles of our
republic. In America the government is supposed to serve, not
rule, "the people."
   In contrast with the inherent nature of the rights of the
people, the powers of the state are not inherent, but are
derived from the "consent of the governed." Justice Brennan,
dissenting from the US v. Verdugo-Urquidez opinion for other
reasons, reminded us that rights are not granted or rescinded
by fickle government whimsy or expedience:
   "(rights are not) given to the people from the
government... (T)he Framers of the Bill of Rights did not
purport to 'create' rights. Rather, they designed the Bill of
Rights to prohibit our Government from infringing rights and
liberties presumed to be pre- existing."(28)
   The powers of the state regarding the militia are
delegated by the people and were delimited in the body of the
US Constitution(29) preceding the Bill of Rights. The power
of the states to raise their own militias and the power of
the federal government to raise an army are not exclusive of
the irrevocable right of the people to keep and bear arms for
protection against violence and oppression. It is groundless
to assert that the Second Amendment protects powers delegated
to the government.

      what did the "Founding Fathers" say?

   The great object is that every man be armed. -- Patrick
Henry

   Are we at last brought to such a humiliating and debasing
degradation, that we cannot be trusted with arms for our own
defense? Where is the difference between having our arms in
our own possession and under our direction, and having them
under the management of Congress? If our defence be the real
object of having those arms, in whose hands can they be
trusted with more propriety, or equal safety to us, as in our
own hands? -- Patrick Henry

   ... to preserve liberty, it is essential that the whole
body of the people always possess arms, and be taught alike,
especially when young, how to use them... --Richard Henry Lee,
Additional Letters from the Federal Farmer 53. 1788.

   The power of the sword, say (those who oppose ratifying
the Constitution), is in the hands of Congress. My friends
and countrymen, it is not so, for the powers of the sword are
in the hands of the yeomanry of America from sixteen to
sixty. The militia of these free commonwealths, entitled and
accustomed to their arms, when compared with any possible
army, must be tremendous and irresistible. Who are the
militia? are they not ourselves. Is it feared, then, that we
shall turn our arms each man against his own bosom. Congress
have no power to disarm the militia. Their swords, and every
other terrible implement of the soldier, are the birth right
of an American.... (T)he unlimited power of the sword is not
in the hands of either the federal or state governments, but
where I trust in God it will ever remain, in the hands of the
people. -- Tenche Coxe, Pennsylvania Gazette, February 20,
1788.

   ...the advantage of being armed, which the Americans
possess over the people of almost every other nation...
Notwithstanding the military establishments in the several
kingdoms in Europe, which are carried as far as the public
resources will bear, the governments are afraid to trust the
people with arms -- James Madison, The Federalist, No. 46

   Another source of power in government is a military force.
But this, to be efficient, must be superior to any force that
exists among the people, or which they can command; for
otherwise this force would be annihilated, on the first acts
of oppression. Before a standing army can rule, the people
must be disarmed; as they are in almost every kingdom in
Europe. The supreme power in America cannot enforce unjust
laws by the sword; because the whole body of the people are
armed, and constitute a force superior to any band of regular
troops that can be, on any pretence, raised in the United
States. A military force, at the command of Congress, can
execute no laws, but such as the people perceive to be just
and constitutional; for they will possess the power, and
jealously will instantly inspire the inclination, to resist
the execution of a law which appears to them unjust and
oppressive. -- Noah Webster, An Examination of the Leading
Principles of the Federal Constitution. Philadelphia. 1787.

   Those who framed our Constitution and Bill of Rights were
students of history. They knew that the importance of an
armed citizenry to preserve liberty and as a deterrent to
oppression had been recognized for over two millennia.
Aristotle valued an armed citizenry to protect democratic
polity as much as Plato feared an armed citizenry as a threat
to monarchical absolutism, his "philosopher king." Cicero
understood that the preservation of the Roman republic
depended upon an armed citizenry as much as the preservation
of the Roman empire depended upon Julius Caesar's standing
army and the disarmament of the Roman underclass and
conquered peoples. Germanic tribes tied arms to the rights
and duties of free men so strongly that the presentation of
arms was required in the ceremony freeing slaves.(30,31,32)
   The right, even duty, in English law to keep and bear arms
predated even the development of firearms. The right to arms
for self defense predated concerns about freedom of worship
by a millennium . Under the rule of Alfred the Great in 872
A.D., even peasants were required to privately purchase arms
and to be available for military duty. The existence of the
right to arms, then as today, did not imply that the right
was free from assault or infringement. Regrettably, gun
control has often been intended and used, to disarm
vulnerable minorities. The earliest English arms control law,
Henry II's Assize of Arms of 1181, though guaranteeing a
right to arms for most, targeted Jews and left them helpless
against pogroms.(33) Our Second Amendment guarantee of the
right to arms reflects our Founders' knowledge that France
first disarmed all but its nobility and then Protestant
nobles (in aid of their forced conversion to Catholicism);
and that England's Catholic King James II was overthrown for
trying to disarm Protestants -- who then disarmed
Catholics.(34,35)
   The struggle between the British monarchy and the
Parliament often involved assaults by despotic kings upon the
common law right to arms. Whether an assault upon the right,
such as Henry VIII's 1514 A.D. extension of his ban on
crossbows to include "handgonnes," or a defense of the right,
as in the Declaration of Rights following the Glorious
Revolution of 1688, the focus was always upon the most
powerful and useful military weapons of the time.(30,31,32)
   Significantly, unlike the protective and military use of
arms, the British have consistently maintained the sporting
and hunting use of arms as an elite preserve of the
aristocracy. Placed in the proper context of self-protection
against criminals and tyrants the Right to Keep and Bear Arms
has little to do with "legitimate sporting use," an
irrelevant distraction in the contemporary debate. Self-
protection, not sport, is the overriding concern. In proper
context, guns are made for only one thing - protection. US
Supreme Court Justice Oliver Wendell Holmes concluded in
Patsone v. Pennsylvania, without needing to invoke the Second
Amendment, that a ban on aliens' possession of long arms was
permissible as a hunting regulation, because the ban did not
extend to handguns which would be needed "occasionally for
self defense."(36)
   As early as 1623 in the American colonies, Virginians were
required to carry arms and to maintain stores of ammunition.
The colonists were therefore well-armed for the revolution
that followed, a revolution that was sparked by British
efforts to seize colonists' arms at Lexington and Concord.
While founding our nation, the Federalists and anti-
Federalists agreed, even took for granted as an extension of
English common law, that the right to arms was an inherent
right of individual citizens. Though agreeing upon the
inherent rights of free people, the Federalists and anti-
Federalists disagreed on the extent to which those rights
needed to be codified and disagreed on the desirability of a
standing army. Anti-federalist patriots such as Patrick
Henry, Thomas Jefferson, and George Mason spoke eloquently
against a standing army as the bane of liberty. They felt
that the armed citizenry, in their words, the "militia," was
the most important deterrent to despotism. They abhorred a
"select militia," such as today's National Guard, because it
is a threat to freedom as fearful as a "standing army."(37)
   Congress may give us a select militia which will, in fact,
be a standing army - or Congress, afraid of a general
militia, may say there shall be no militia at all. When a
select militia is formed; the people in general may be
disarmed. -- John Smilie
   Their intent for the Second Amendment was stated most
succinctly by Patrick Henry -- "The great object is that every
man be armed."(38) As the United States Senate Subcommittee
on the Constitution has documented in their 1982 report on
the Right to Keep and Bear Arms, nowhere in the documented
debates on the Second Amendment is there any suggestion by
anyone that the right was anything but a right of
individuals.(30,31,32) Indeed, the falsity of the "states'
right" or "collective right only"  interpretation of the
Second Amendment is underscored in observing that such an
interpretation is exclusively a 20th. Century invention of
which no inkling is found in any pre-20th Century discussion
of the Second Amendment, legal commentary, or case.(34)

      what is the "militia"?

   The signification attributed to the term "militia" appears
from the debates in the Convention, the history and
legislation of the colonies and the states, and the writings
of approved commentators. These show plainly enough that the
militia comprised all males physically capable of acting in
concert for the common defense... and further, that
ordinarily when called for service these men were expected to
appear bearing arms supplied by themselves and of the kind in
common use at the time. -- the US Supreme Court in US v.
Miller(39)
   The militia of the United States consists of all able-
bodied males at least 17 years of age... and under 45 years
of age. -- United States Code, Title 10, Section 311(a)
   The section of the United States Code following the
definition of the general militia defines what James Madison
and the other Founding Fathers considered a "select militia"
such as today's National Guard.(37,40) Though grossly
discriminatory, under current law, the only female members of
the "militia" are the female officers of the National Guard.
Failing to understand that the National Guard is only one
small component, far from the totality of the "militia," has
allowed those who disdain the Second Amendment to advance
plausible and politically useful misinterpretations. The
numerous papers and statements of the authors, signatories,
and commentators of the Bill of Rights, statutes, and case
law show unequivocally that today, as always intended by the
Framers of our Constitution and Bill of Rights, the general
"militia" consists of Americans armed with their own guns.
   According to Congress,(41) in order to allow sending the
National Guard overseas, the Guard has been established under
the Congressional authority to "raise and support
armies,"(42) not under Congressional authority "to provide
for organizing, arming, and disciplining the militia."(29)
All Americans were reminded of this in the 1989 US Supreme
Court decision Perpich v. Department of Defense(43) which
prevented governors from withholding their National Guard
units from exercises outside the United States.

      the "living constitution"

   It has been argued that the Second Amendment should be
invalidated because its Framers could not have possibly
envisioned the firepower available today. By such logic the
First Amendment could be invalidated. After all, could the
Framers have envisioned the power of the mass media oligarchy
and all their high-tech tools (satellite links, "high
capacity" printing presses, computers, cable television,
etc.) to spread deceit and misinformation?

   Right to Keep and Bear Arms -- the Courts

   There are very few US Supreme Court cases that even
tangentially touch upon the Right to Keep and Bear Arms. The
most recent of the cases directly addressing right to arms
issues is the 1938 US v. Miller case. The US v. Miller
decision is often cited and misunderstood. It is the case
that acknowledged the individual citizen's right to own
military weapons -- "part of the ordinary military equipment"
or which "could contribute to the common defense." Miller was
freed at the federal district level, on Second Amendment
grounds, from charges of possession of a "sawed-off" shotgun
for which he had not paid the tax required under the National
Firearms Act of 1934. The federal prosecutor pursued an
appeal. Miller died before the appeal reached the Supreme
Court leaving his position unargued. No evidence that a
"sawed-off" shotgun was a "militia" weapon had been
introduced by Miller. The Court held that, absent formal
evidence submitted by Miller, it could not take "judicial
notice" of whether or not a "sawed-off" shotgun was a
protected weapon. Because Miller's position was unargued, his
indictment was upheld --leaving gun prohibitionists confused,
mistakenly thinking that the Court found against an
individual right, when, in fact, the Court upheld an
individual right to own military weapons. The Supreme Court
had only stated they had no knowledge of whether or not a
"sawed-off" shotgun was a military weapon.
   One simple fact is never mentioned by gun prohibitionists.
The United States' brief in US v. Miller  urged the Supreme
Court to accept the "collective right only" theory. The
Supreme Court refused.(44)
   It is not surprising that Vernick and Teret failed to
acknowledge the explicit Supreme Court holdings unsupportive
of their prohibitionist view. It is shocking, however, that
Vernick and Teret would pervert the findings of US v. Miller,
and that the American Journal of Public Health peer review
did not catch the falsification.

      is there solace in "denial of cert"?

   As elucidated by the paid general counsel of Handgun
Control Inc., the "collective right only" or "prohibitionist
theory" rests largely on the refusal of the Supreme Court to
hear certain gun cases (denial of certiorari appeal
petitions),(26) rather than on the Court's explicit holdings.
For example, the 1983 refusal of the US Supreme Court to hear
a case, "denial of cert," against the Village of Morton
Grove's ban on handguns(45) is treated by gun prohibitionists
as though it were a Supreme Court holding in support of gun
prohibition.
   As a simple matter of law and procedure, "denial of cert"
quite simply means that "fewer than four members of the
(Supreme) Court deemed it desirable to review a
decision..."(46) Supreme Court Procedure is clear; acceptance
or denial of certiorari petitions to obtain Supreme Court
review of a lower court case is entirely a matter of the
Supreme Court Justices' discretion, discretion that often
relates to little more than the crushing caseload presented
annually to the Supreme Court.(47) Though Handgun Control
Inc. implies otherwise, the lower court opinion in Quilici v.
Village of Morton Grove is not the law of the land.

   Right to Keep and Bear Arms -- the Ninth Amendment

   The enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others retained
by the people. -- Ninth Amendment, US Constitution
   Though the debate often focuses on the Second Amendment,
there is increasing legal scholarship that finds support of
the Right to Keep and Bear Arms in Ninth Amendment
"unenumerated" rights,(48) Fourteenth Amendment "due process"
and "equal protection" rights,(49-52) and natural rights
theory.(34)
   During the debates on the Bill of Rights there was
disagreement regarding the necessary degree of detail in
which rights needed to be catalogued. For example, did there
need to be acknowledgment of the right to eat and dress as
one chooses? A balance was struck and the Ninth Amendment was
agreed to be the protection of innumerable rights presumed to
be pre-existent. It is clear from the debates and other
contemporary papers that the framers, without exception,
believed in the right, even duty, to self-protection.
Unarguably, a right to self-protection would be empty without
the means of self-protection, including then, as now,
firearms and ammunition. To suggest that one has inalienable
rights to life, liberty, and pursuit of happiness, but not
the means to protect those rights leads to unacceptable
corollaries. To disarm citizens forces dependency upon a
government that is expected to benevolently, competently, and
equitably protect its citizens. Such blind and misplaced
trust squares neither with history, with the framer's fear of
collective power in general, nor with their fear of federal
and state collective power in particular.(48)

      the safest and most effective means of self protection

   To maintain that firearms are necessary for self-
protection, it must be demonstrated that, in balance, guns
are effective tools of self-defense. Caveats about earlier
estimates of 1 million protective uses of guns each year(14)
have led Kleck to perform the largest scale, national, and
methodologically sound study of the protective uses of guns.
The best concordant and existent estimates suggest that good
Americans use guns to protect themselves and their families
between 800,000 and 2.4 million times each year(53) -- as many
as 75 lives protected by a gun for every life lost to a gun,
as many as 5 lives protected per minute.
   Defense with a gun results in fewer injuries to the
defender (17.4%) than resisting with less powerful means
(knives, 40.3%; other weapon, 22%; physical force, 50.8%;
evasion, 34.9%; etc.) and in fewer injuries than not
resisting at all (24.7%).(14) Guns are most effective and
safest means of protection. This is particularly important to
women, children, the elderly, the handicapped, the weak, and
the infirm, those who are most vulnerable to vicious
predators. Perhaps the 19th. Century aphorism should be
updated to "God made woman and Lady Smith made her equal."

      aren't guns dangerous?

   To suggest that science has proven that defending oneself
or one's family with a gun is dangerous, gun prohibitionists
often claim: "a gun owner is 43 times more likely to kill a
family member than an intruder." This is Kellermann and
Reay's flawed risk-benefit ratio for gun ownership,(54)
heavily criticized for its deceptive approach and its non-
sequitur logic.(14,55,56)  Unfortunately this fallacy is one
of the most deceptive and misused slogans of the well-funded
anti-self-defense lobby.
   The true measure of the protective benefits of guns are
the lives saved, the injuries prevented, the medical costs
saved, and the property protected -- not the burglar or rapist
body count. Since only 0.1 to 0.2% of defensive gun usage
involves the death of the criminal,(14) any study, such as
Kellermann and Reay's study, that counts criminal deaths as
the only measure of the protective benefits of guns will
expectedly underestimate the benefits of firearms by a factor
of  500 to 1,000.
   Interestingly, the authors themselves described but did
not use the correct methodology. They acknowledged that a
true risk-benefit consideration of guns in the home should
(but did not in their "calculations") include "cases in which
burglars or intruders are wounded or frightened away by the
use or display of a firearm (and) cases in which would-be
intruders may have purposely avoided a house known to be
armed...."(54) Objective analysis, even by Kellermann and
Reay's own standards, shows the "43 times" comparison to be
deceptively appealing, though only a specious contrivance.
Kellermann's recent "2.7 times" comparison(57) suffered from
the same errors of logic and method.

      the myths of police protection

   It has been argued than guns are not needed by citizens
because citizens are incompetent in gun use, likely to injure
themselves or other innocents, and, besides, citizens are
protected by the police and the military,. Those arguments
collapse under examination from any direction. Recognizing
current crime rates, recognizing that citizens already use
guns to repel crime 7 to 10 times as frequently as the
police,(14) and recognizing that of shootings by citizens
only about 2% are wrongful compared with 20% wrongful
shootings by police,(18) the effectiveness of police
protection can be rightfully questioned.
   A significant, if not majority, of police activity
involves "mopping up" after the crime has already occurred.
Since violent or other criminal assaults do not come pre-
announced, the police cannot always be where they are needed,
so police will be more effective in apprehension than in
protection. This, of course, is exactly the role assigned to
police, though research suggests that police apprehension
offers less deterrent to criminals than the threat of
encountering an armed victim.(13) How many police officers
would be necessary to replace the benefits of today's armed
citizen protecting themselves and their families, repelling
and deterring crime? At what cost? Can the public coffers
afford round-the-clock protection for all?
   Many are surprised to discover that the police do not have
any legal obligation to provide protection to individuals,
even if in immediate danger.(58) An oral promise to respond
to an emergency call for assistance does not make the police
liable to provide protection.(59) Statutes(60) and legal
precedents(61) are clear that the police only have a
responsibility to provide some general level of protection to
the community at large. Citizens have been and continue to be
responsible for their own protection.
   The withdrawal of police protection from riot-torn areas
of Los Angeles and the two day delay in putting National
Guard soldiers on the streets of Los Angeles exposed the
illusion of public protection. Additionally, it is disturbing
to recall that armed citizens had to protect themselves from
the police and US National Guard soldiers who were looting in
the aftermath of Hurricane Hugo.(62) Throughout American
history we have innumerable examples of crime, terrorism,
civil disorder, and natural disasters, where the police and
military forces have been unable or unwilling to protect
citizens, often for racist or political reasons.(63,64,65)
Though the police have an admittedly difficult and important
job, police riots and other police abuse of authority,
collective and individual, are frequent in the US.(66) One
can rightfully question the wisdom of sole reliance upon the
police or military in times of need.
   Disarming citizens forces them to be dependent upon
collective security measures that are demonstrably
ineffective and unfairly distributed. It is difficult to
reconcile the value of the individual's life and the
subordination of the state, precepts upon which this nation
was founded, with a forced dependency upon a demonstrably
ineffective and inequitable government. With the government's
demonstrated incompetence and mendacity evident in less
important realms, how can we trust our lives to their
ministrations, reduced to little else than passive spectators
when our lives are in danger? In the view of one author, it
reduces the right of self preservation to the First Amendment
right to scream "911."(48)
   The situation would be much like telling a climber that
all ropes will be collectively controlled. If he begins to
fall, then he need only call and an agent of the government
will be dispatched to bring the rope that will prevent his
injury or death. Unfortunately, once the need for the
resource arises, assistance will in many instances be too
late. Taking the analogy further to incorporate the
additional problem of limited resources by assuming that
there are at any one time one hundred actual climbers,
thousands of potential climbers and only five rope
administrators, together with the acute nature of the need,
we should question the wisdom of the decision which
prohibited self-help and individual ownership of ropes.(48)

      the myth of invulnerability

   It has been claimed that guns are not needed by citizens
and that the "militia" is outmoded because Americans are
protected by the military, including the National Guard, from
outside invasion. While the Army and National Guard were on
foreign soil waging the World Wars, it was organized gun
clubs and individual gun owners, the "militia," that
protected the home front. It was armed citizens who patrolled
to prevent sabotage such as World War I's "Black Tom"
explosion. In fact, it was the generosity of American gun
owners that provided weapons to the British, who, though
proud of being disarmed and civilized, were bereft of the
tools needed to defend themselves from the armed and
uncivilized. Of course, immediately after the war, the
British dumped those American guns at sea, since, certainly,
those weapons would never again be needed. History cannot
repeat itself - or can it?
   During the Gulf War Saddam Hussein promised to bring the
war home to the American people. The Army and National Guard
were outside the country and collective police security
focused upon public assets, utilities, and transportation
resources. Had Saddam Hussein attempted to make good his
threat against the American people, armed citizens, the
"militia," would have been our country's final line of
defense.

      the myths of government benevolence and the futility of
resistance

   It has been claimed further that guns are not needed by
citizens and that the "militia" is outmoded because no
internal tyranny or abuse of collective power is possible in
the US and, besides, today's military and police are so well
armed that individual or organized armed resistance by
citizens would be futile. Events of this century give lie to
such claims of government benevolence. It is ignorance,
complacency and arrogance that allow a claim, "It can't
happen here." Though Christian European-Americans may have
few relevant recollections, religious and ethnic minorities
would be among the first to dispute pious claims of
government benevolence and competence.
   Many in the mainstream might consider the alternative of
armed resistance (by Japanese-Americans who, during World War
II, had their property seized as they were interned in
concentration camps) to be useless and counterproductive.
From the perspective of the victim, the choice between
submitting to such grave depredations or fighting, even
without the hope of prevailing, might weigh out differently.
Certainly, we would expect that any one of the framers who
found himself suddenly in the circumstances faced by many
Japanese internees would have chosen to fight and die rather
than submit his life and property to such an unrestrained
exercise of collective power. Indeed, the abuses that were
used to rationalize the colonies' revolt against England pale
in comparison.(48)
   African-Americans had arms which preserved civil rights
workers' lives during the years when Washington shrank from
curbing Klan terrorism for fear of offending the South's all-
white electorate. Rev. Martin Luther King, Jr. preached non-
resistance to non-lethal violence, not to outright lynching
(between 1882 and 1968, 4,743 persons were lynched). His and
other civil rights leaders' bodyguards carried concealed
handguns illegally. Some leaders carried their own as
well.(63)
   The result when criminals know victims are armed is not
more violence but less. Encountering armed resistance,
Klansmen usually backed off. And police, though inactive when
unarmed civil rights workers were beaten or murdered,
discovered the need to step in and neutrally keep the peace
when the intended victims appeared ready to defend
themselves. Innumerable firearms, such as those of the
Deacons for Defense and Justice, played a key role in
protecting civil rights workers. The reader, if unconvinced
of the long history of racist police and government abuse, is
referred to the meticulous documentation provided by Law
Professors Cottrol and Diamond.(63)
   As to claims of the futility of armed resistance against
technologically-developed adversaries, one need only note
that industrial countries have fared poorly at the hands of
motivated patriots. Consider the fate of the French in
Indochina and Algeria, of the Americans in Viet Nam, and of
the Soviets in Afghanistan.
      has the life of the individual been subordinated to
state policy?... or to the whims of the elite?
   If citizens were disarmed, would the price of disarmed
lives lost be worth it? Do American lives belong to the state
to decide who shall live or die? ...who may and who may not
have the means to protect themselves? Is our government our
servant or our master? Is the efficiency, order, and survival
of the government, our servant, more important than our
survival as its masters? These troubling questions arise the
instant that citizens are forced to depend upon the
government for their lives, their liberty, and their
happiness.
   It seems incongruous - or elitist - for Congressman
Stephen Solarz and Senator Teddy Kennedy to argue that
citizens do not need guns for protection and consistently
deny that individuals have a right to arms yet their
bodyguards have been arrested on Capitol Hill for weapons
violations (toting 9mm semiautomatic pistols and submachine
guns respectively).(48) How can Senator Dianne Feinstein
zealously and melodramatically advocate handgun prohibition
for citizens, yet avail herself of the privilege of a
concealed handgun license (or sham deputization as a US
Marshal) so that she may enjoy the protective benefits of a
handgun that she would deny to those she "serves"
   (It is) difficult to justify...permitting government
agents, whom we ideally characterize as servants, to enjoy a
level of security, provided in part by firearms, unavailable
to the general population. Such a result leads to the
conclusion that those in positions of power in government are
distinct from servants whose lives are somehow worth more
than the lives of citizens. It then follows that our
constitutional system is designed to tolerate a tier of elite
whose interest in personal security exceeds that of citizens
merely because of their positions in government. Our
constitutional tradition, based on the concepts of limited
government serving the citizenry and legitimate fear of the
power vested in government, seems at odds with such
conclusions.(48)
   If one distrusts government or considers self-preservation
at least as important as collective interests, then one might
conclude that individual citizens may choose to own the same
type of weapons carried by the police and individual
soldiers. Given the adventuresome and provocative nature of
American foreign policy, thoroughness demands than one
explore whether Americans would be more secure from external
threat and from internal abuse if the government and its
innumerable agents had fewer means of mischief, denied
possession of weapons not owned by the people.

   Right to Keep and Bear Arms -- the Fourteenth Amendment and
Racism

   Are the states free to violate rights that the federal
government may not violate? This question is the crux of the
Fourteenth Amendment "incorporation" issue.

   ...No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.... -- Fourteenth Amendment, US
Constitution

   The language seems clear, yet the US Supreme Court has
denied "total incorporation" of the Bill of Rights to protect
all civil rights against state infringements. The Supreme
Court has instead chosen the path of "selective
incorporation," so that a Supreme Court holding is necessary
to "incorporate" each civil right against violation by the
states. It was not until a 1922 First Amendment case,
Prudential Insurance Co. v. Cheek, (67) that the US Supreme
Court incorporated any rights against the states. The Second
Amendment rights, among others, have not yet been afforded
such protection though considerable extent scholarship
supports incorporation.(49-52) Curtis' history, a neutral and
scholarly history of the enactment of the Fourteenth
Amendment, concluded that "the rights that Republicans in the
Thirty-ninth Congress relied on as absolute rights of the
citizens of the United States were the right(s) to freedom of
speech... due process ... and to bear arms." The debate
extolled the right to arms or equated its importance to free
expression, religious liberty, due process, jury trial, and
rights against unreasonable search and seizure.

      the racist roots of gun control

   In an infamous 1857 case upholding slavery, Dred Scott v.
Sandford,(68) Chief Justice Taney of the US Supreme Court
wrote:
   (If they were citizens,) it would give to persons of the
negro race, who were recognized as citizens in any one State
of the Union, the right to enter every other State whenever
they pleased, singly or in companies...; and it would give
them the full liberty of speech...; to hold public meetings
upon political affairs, and to keep and carry arms wherever
they went.
   Such repugnant racism, evident even in the US Supreme
Court, has motivated much of America's "gun control." The
advocates of gun control cannot be proud that the roots of
American "gun control" lie in racism and the control of
unpopular ethnic and political groups.(63,64,65) In fact, the
very first US "gun control" was the denial of arms to
African-Americans by the Militia Act of 1792. Nat Turner's
slave revolt in 1831 precipitated a flood of laws prohibiting
guns to African-Americans. Unsurprisingly, antebellum laws
denied slaves access to guns except in limited circumstance --
at the discretion of their masters, only the most trusted
slaves might be allowed use of firearms for hunting, but
never for self-protection. Antebellum gun laws even targeted
free African-Americans. Such laws ranged from "discretionary"
(which is to say "arbitrary" and subject to abuse) licensing
to carry firearms (Delaware 1831) to laws that, reminiscent
of Presidential-candidate Perot's suggestion to cordon the
inner city and conduct warrantless house-to-house searches
for weapons, allowed white men to arbitrarily enter African-
American homes without warrant and to seize weapons without
trial (Florida 1833). Neither racism nor racial violence was
restricted to the South, as evidenced by the 1831 Providence
Snowtown, 1841 Cincinnati, 1834 New York City, and numerous
other riots perpetrated upon African-Americans. Since the
police had shown themselves unwilling to protect even free
African-Americans, the response was to form private militias
such as in 1821 Providence ("African Greys"), 1835
Philadelphia, and 1850 Boston.(63)
   While slavery existed in America, African-Americans were
disarmed. Immediately after Appomatox, Southern legislatures
enacted special laws to keep blacks in perpetual peonage,
including disarming them. The conclusion of the Civil War did
nothing to diminish white efforts "to preserve as much of the
antebellum social order as could survive northern victory and
national law.... As one North Carolina statute indicated:
   "All persons of color who are now inhabitants of this
state shall be entitled to the same privileges, and are
subject to the same burdens and disabilities, as by the laws
of the state were conferred on, or were attached to, free
persons of color, prior to the ordinance of emancipation,
except as the same may be changed by law."(63)
   Foremost amongst those "disabilities" were Black Codes
that denied arms to Freedmen:
   Be it enacted... That no freedman, free negro or mulatto,
not in the military service of the United States government,
and not licensed by the board of police of his or her county,
shall keep or carry fire-arms of any kind, or any ammunition,
dirk or bowie knife... -- from the Act to Regulate the
Relation of Master and Apprentice Relative to Freedman, Free
Negroes and Mulattoes, Mississippi statute, 1865.(69)
   ...it shall not be lawful for any for any freedman,
mulatto, or free person of color in this State, to own fire-
arms, or carry about his person a pistol or other deadly
weapon. -- Alabama Statute(63)
   Such racist recalcitrance manifest legally in the Black
Codes and extra-legally by means such as Ku Klux Klan
terrorism, goaded northern Republicans into passage of the
Fourteenth Amendment. Jonathan Bingham, author of the
Fourteenth Amendment's Privileges or Immunities Clause,
clearly stated that it applied the Bill of Rights to the
states.(51,63) After the Fourteenth Amendment outlawed
explicit race-based criteria to deny gun rights, racists
turned to outlawing inexpensive arms, "Suicide Specials" in
the parlance of the 1870's. In other words, "gun control"
turned to deny arms that were affordable to African-Americans
and poor agrarian reformer whites.(74) Today's affordable
pistols are called "Saturday Night Specials." It should
rightfully make gun prohibitionists uncomfortable that,
besides evoking the familiar tactic of 19th. Century racists,
their buzzword is derived from the deplorable racist epithet,
Niggertown Saturday Night.(70)
   Modern day gun prohibitionists claim that the Fourteenth
Amendment civil rights protections have not "incorporated"
Second Amendment protections against the states. In other
words, prohibitionists claim that state governments are free
to violate gun civil rights that the federal government may
not violate. With contradictory illogic, they simultaneously
claim that there is no individual right to arms. If there is
no individual right to arms, what is there to incorporate
against the states? How can a "states' right" be incorporated
against the state itself?
   US v. Cruickshank(71)is cited to support non-incorporation
of the Right to Keep and Bear Arms. Amongst many Ku Klux Klan
terrorist prosecutions, Cruickshank and his co-conspirators
had been convicted of disarming African-Americans and
depriving them of First Amendment rights. On appeal, the
circuit court upheld Cruickshank's conviction and upheld
incorporation of both First and Second Amendment protections
against state violation but not against purely private acts.
In neither the government's nor the defendant's appellate
briefs to the Supreme Court was the incorporation issue
addressed because only a private conspiracy by the Ku Klux
Klan was at issue. While the final holding of the Supreme
Court in US v. Cruickshank did not address incorporation of
both First and Second Amendment civil rights against state
violation, the Court affirmed that the Right to Keep and Bear
Arms is not "in any manner dependent upon (the Constitution)
for its existence."(71) The US Supreme Court chose not to
protect the First and Second Amendment rights of African-
Americans against racist terrorists, stating that it was a
problem properly left for local enforcement. It is this
racist case, giving a "wink and a nod" to Ku Klux Klan
terrorists, to which modern day prohibitionists proudly point
claiming that states are free to violate Second Amendment
rights. US v. Cruickshank dealt a near-fatal blow to the
ability of the federal government to enforce the Fourteenth
Amendment, an ability that it has yet to fully recover
despite more than a century of remedial effort.
   A decade later, the US Supreme Court when faced with a
state, rather than private, deprivation of rights in Presser
v. Illinois, again sidestepped the incorporation of the
Second Amendment.(72) Presser was convicted of parading 400
men with rifles through the streets of Chicago without having
a license from the governor as required under Illinois law.
The German immigrants whose stated objectives were the
promotion of good citizenship claimed that the Illinois law
violated their Second Amendment rights. The US Supreme Court
disagreed:
   We think that the sections under consideration, which only
forbid bodies of men to associate together as military
organizations, or to drill or parade with arms in cities and
towns unless authorized by law, do not infringe the right of
the people to keep and bear arms.(72)
   In other words, the Court upheld Presser's conviction on
the issue of private armies, not on the issue of the
individual Right to Keep and Bear Arms. As to such individual
rights, the Court found:
   It is undoubtably 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... the States cannot, even laying the
constitutional  provision in question out of view, prohibit
the people from keeping and bearing arms.(72)
   So, while certain state and federal gun controls may be
constitutional, gun prohibitions are clearly
unconstitutional. Allowable gun controls may not regulate the
right into virtual non-existence. Ammunition bans or
exorbitant gun or ammunition taxes are precisely the types of
"gun control" that would make a mockery of the right.
   Gun prohibition advocates take a selective and
hypocritical refuge in a "guns only" application of a
"states' rights" argument. Using a "states' rights" argument
that the Bill of Rights fails to protect the right to keep
and bear arms from infringement by states uses logic that, if
similarly applied, would fail to protect freedom of speech,
freedom of religion, and other fundamental rights from state
infringement. Would gun prohibitionists return us to the pre-
Fourteenth Amendment racist abuses of the Black Codes? The
pace of Second Amendment litigation parallels legislative
infringements and jurisdictional conflicts, so the Supreme
Court is unlikely to indefinitely evade the incorporation
issue or to indefinitely find "ways to ignore the
constitutional demands imposed by the reconstruction
amendments."(63)

      does racism motivate today's gun prohibition?

   The rest of the story is all too well known. The Court's
denial of an expanded roll for the federal government in
enforcing civil rights played a crucial role in redeeming
white rule. Th doctrine in Cruickshank, that blacks would
have to look to state government for protection against
criminal conspiracies, gave the green light to private
forces, often with the assistance of state and local
governments, that sought to subjugate the former slaves and
their descendants.... In the Jim Crow era that would follow,
the right to possess arms would take on critical importance
for many blacks. This right, seen in the eighteenth century
as a mechanism that enabled a majority to check the excesses
of a potentially tyrannical national government, would for
many blacks become a means of survival in the face of private
violence and state indifference.(63)
   Traditionally, sensational press has linked unpopular
minority groups with firearms. The 1911 passage of New York
City's Sullivan law intertwined with hatred of immigrant
Italians and Jews who were depicted by the press as involved
with gang warfare and gun ownership.(74) Enactment of Article
19 of the California Constitution, the anti-Chinese
provisions, were preceded by Delegate W.P. Grace's comments,
noting that the Chinese in San Francisco "were armed" for the
purpose of defending themselves in casethere was a riot.... I
am opposed to arming any servile population, or any class,
for the purpose of instigating anarchy...." Another delegate
decried that "there are Chinamen in San Francisco armed: and
today the Chinamen get muskets from white men."(73)
   Advocates of gun prohibition and the victim disarmament
lobby would quickly deny racist motives, yet racist imagery
infests the media's treatment of guns and violence. Are not
hooded African-American and Latino males with guns the
predominant image of violent crime portrayed in broadcast and
print journalism?... on COPS?... on police dramas? Consider
that during the 1989 debate in California on "assault
weapons," San Francisco's CBS affiliate played a five minute
segment on criminal statistics, repeatedly returning to the
background image of a young African American male admiring an
"assault weapon" in a local gun shop. Despite overwhelming
data showing that "assault weapons" are barely measurable
amongst crime guns,(19) the "assault weapon" debate continues
to be driven by false assertions and imagery. Readers should
examine the data, become sensitive to the imagery, and then
draw their own conclusions.
   Lest one surmise that only the media is at fault, in 1941
a Florida Supreme Court justice held:
   I know something of the history of this legislation.
...the Act was passed for the purpose of disarming the negro
laborers and to thereby reduce the unlawful homicides that
were prevalent...and to give the white citizens...a better
feeling of security. The statute was never intended to be
applied to the white population and in practice has never
been so applied.(74)
   In a Maryland Court of Appeals case upholding
manufacturers' liability for the criminal misuse of "Saturday
Night Specials," the court described such guns as "ghetto
guns."(75) Consider the spate of gun control legislation
that, within 48 hours, followed the 1967 appearance of
peaceful but armed Black Panthers at the State Capitol.
Consider Eddie Murphy's words as Axel Foley in the movie 48
Hours, "I'm your worst nightmare -- a nigger with a gun and a
badge." It does appear that legitimate gun ownership and
usage by minorities is fearful to some.
   Much of the contemporary crime that concerns Americans is
in poor black neighborhoods and a case can be made that
greater firearms restrictions might alleviate this tragedy.
But another, perhaps stronger case can be made that a society
with a dismal record of protecting a people has a dubious
claim on the right to disarm them. Perhaps a re-examination
of what the framers of the Second Amendment understood: that
it is unwise to place the means of protection totally in the
hands of the state, and that self-defense is also a civil
right.(63)

   Conclusion

   Of course, gun prohibitionists are free to hope for a day
when the Supreme Court may rewrite history, fabricate a legal
fiction, overturn centuries of law, and support a view that
disdains self-protection and subordinates the life, liberty,
and pursuit of happiness of American citizens to an all
powerful state. Frighteningly, their wishes could come true.
Consider that the Supreme Court at one time justified
slavery. Consider that racketeering laws as ised against
political protestors. Consider today's bizarre legal fiction
that allows seizure of assets without conviction, without
trial, without even indictment. The substance of the fiction?
-- the government is prosecuting property which is "guilty
until proven innocent" because assets, unlike people, have no
rights. Consider the case of Santa Barbara millionaire David
Scott, falsely fingered on a drug warrant only to be murdered
by government agents who, according to the Ventura County
District Attorney, were motivated by asset forfeiture. Such
is the government to whom gun prohibitionists would allow a
monopoly on force of arms, trusting that government with our
lives and our liberties. Such madness precedes enslavement.
   Despite efforts by the well-funded gun prohibition lobby
to deny or denigrate the individual right to arms,(26) it is
their "collective right only" theory that founders. There are
serious impediments to handgun, "assault weapon," and
ammunition ban proposals. Similar impediments exist for other
"gun controls," including exorbitant taxation, that are only
a sham for prohibition. So, if gun prohibitionists,
pacifists, and the anti-self-defense lobby do not find the
protective uses and deterrent effects of firearms to be
persuasive reasons for sane, law abiding, adult citizens to
own the firearms of their choice, in view of the
constitutional impediments to gun prohibition, their only
lawful option to accomplish their goal is to convince
Americans that they are forever safe in the government's
hands, that they have no lawful or natural right to self-
protection from predators and tyrants, and then to amend the
US Constitution.
   It is a bizarre symmetry that, as America adopts more
centralized, statist control, the burgeoning freedoms of
Russia include a newly acknowledged right to keep and bear
arms.(76) The wisdom of our nation's founders remains clear;
when the government has a monopoly on the tools of coercive
force, people can neither protect themselves and their
families, nor long remain free. Look to medicine's
politicians and determine if those touting "gun control" are
the same "statist" medical politicians leading America into
the arms of socialized medicine and other collectivist social
agendas.
   It is time our society adopted a Pro-Choice stance on
self-defense and gun ownership. Those who would eschew guns
then trust their lives and freedom to a rapacious,
capricious, incompetent, and uncaring government are welcome
to do so, but their dangerous views should not become public
policy. Our freedom and our lives are at stake!

   Endnotes

   1     American Medical Association Council on Scientific
Affairs. Assault Weapons as a Public Health Hazard in the
United States. JAMA 1992; 267: 3070.
   2     American Academy of Pediatrics. "Firearms Injuries
Affecting the Pediatric Population." AAP News. January 1992;
p. 22.
   3     Kassirer JP. "Firearms and the Killing Threshold."
N. Engl J Med 1991; 325:1647-49.
   4     Vernick JS and Teret SP. "Firearms and Health: The
Right to Be Armed with Accurate Information about the Second
Amendment." Am. J. Public Health. 1993; 83(12):1773-77.
   5     Articles supportive of the individual rights view
include:
   Aynes. "On Misreading John Bingham and the Fourteenth
Amendment." Yale Law Journal. 1993; 103:57;
   Amar AR. "The Bill of Rights and the Fourteenth
Amendment." Yale Law Journal. 1992; 101: 1193-1284.; Winter
1992; 9: 87-104.;
   Scarry E.  "War and the Social Contract: The Right to Bear
Arms." Univ. Penn. Law Rev. 1991; 139(5): 1257-1316.;
   Williams. "Civic Republicanism and the Citizen Militia:
The Terrifying Second Amendment" Yale Law Journal. 1991;
101:551.;
   Cottrol RJ and Diamond RT. "The Second Amendment: Toward
an Afro-Americanist Reconsideration." The Georgetown Law
Journal. December 1991: 80; 309-61.;
   Amar AR. "The Bill of Rights as a Constitution" Yale Law
Journal. 1991; 100 (5): 1131-1210.;
   Levinson S. "The Embarrassing Second Amendment" Yale Law
Journal. 1989; 99:637-659.;
   Kates D. "The Second Amendment: A Dialogue." Law and
Contemporary Problems. 1986; 49:143.;
   Malcolm JL. Essay Review. George Washington U. Law Review.
1986; 54: 452-464.;
   Fussner FS. Essay Review. Constitutional Commentary. 1986;
3: 582-8.;
   Shalhope R. "The Armed Citizen in the Early Republic." Law
and Contemporary Problems. 1986; 49:125-141.;
   Halbrook S. "What the Framers Intended: A Linguistic
Interpretation of the Second Amendment." Law and Contemporary
Problems. 1986; 49:153.;
   Kates D. "Handgun Prohibition and the Original Meaning of
the Second Amendment." Michigan Law Review. 1983; 82:203.
   Halbrook S. "The Right to Bear Arms in the First State
Bills of Rights: Pennsylvania, North Carolina, Vermont, and
Massachusetts." Vermont Law Review 1985; 10: 255-320.;
   Halbrook S. "The Right of the People or the Power of the
State: Bearing Arms, Arming Militias, and the Second
Amendment." Valparaiso Law Review. 1991; 26:131-207.;
   Tahmassebi SB."Gun Control and Racism." George Mason Univ.
Civil Rights Law Journal. Winter 1991; 2(1):67-99.;
   Bordenet TM. "The Right to Possess Arms: the Intent of the
Framers of the Second Amendment." U.W.L.A. L. Review. 1990;
21:1.-30.;
   Moncure T. "Who is the Militia - The Virginia Ratifying
Convention and the Right to Bear Arms." Lincoln Law Review.
1990; 19:1-25.;
   Lund N. "The Second Amendment, Political Liberty and the
Right to Self-Preservation." Alabama Law Review 1987;
39:103.-130.;
   Morgan E "Assault Rifle Legislation: Unwise and
Unconstitutional." American Journal of Criminal Law. 1990;
17:143-174.;
   Dowlut, R. "Federal and State Constitutional Guarantees to
Arms." Univ. Dayton Law Review. 1989.; 15(1):59-89.;
   Halbrook SP. "Encroachments of the Crown on the Liberty of
the Subject: Pre-Revolutionary Origins of the Second
Amendment." Univ. Dayton Law Review. 1989; 15(1):91-124.;
   Hardy DT."The Second Amendment and the Historiography of
the Bill of Rights." Journal of Law and Politics. Summer
1987; 4(1):1-62.;
   Hardy DT. "Armed Citizens, Citizen Armies: Toward a
Jurisprudence of the Second Amendment." Harvard Journal of
Law and Public Policy. 1986; 9:559-638.;
   Dowlut R. "The Current Relevancy of Keeping and Bearing
Arms." Univ. Baltimore Law Forum. 1984; 15:30-32.;
   Malcolm JL. "The Right of the People to Keep and Bear
Arms:The Common Law Tradition." Hastings Constitutional Law
Quarterly. Winter 1983; 10(2):285-314.;
   Dowlut R. "The Right to Arms: Does the Constitution or the
Predilection of Judges Reign?" Oklahoma Law Review. 1983;
36:65-105.;
   Caplan DI. "The Right of the Individual to Keep and Bear
Arms: A Recent Judicial Trend." Detroit College of Law
Review. 1982; 789-823.;
   Halbrook SP. "To Keep and Bear 'Their Private Arms'"
Northern Kentucky Law Review. 1982; 10(1):13-39.;
   Gottlieb A. "Gun Ownership: A Constitutional Right."
Northern Kentucky Law Review 1982; 10:113-40.;
   Gardiner R. "To Preserve Liberty -- A Look at the Right to
Keep and Bear Arms." Northern Kentucky Law Review. 1982;
10(1):63-96.;
   Kluin KF. Note. "Gun Control: Is It A Legal and Effective
Means of Controlling Firearms in the United States?" Washburn
Law Journal 1982; 21:244-264.;
   Halbrook S. "The Jurisprudence of the Second and
Fourteenth Amendments." George Mason U. Civil Rights Law
Review. 1981; 4:1-69.
        The following treatments in book form also conclude
that the individual right position is correct: Malcolm JL. To
Keep and Bear Arms: The Origins of an Anglo-American Right.
Cambridge MA: Harvard U. Press. 1994.;
   Cottrol R. Gun Control and the Constitution (3 volume
set). New York City: Garland. 1993.;
   Cottrol R and Diamond R. "Public Safety and the Right to
Bear Arms" in Bodenhamer D and Ely J. After 200 Years;
   The Bill of Rights in Modern America. Indiana U. Press.
1993.; Oxford Companion to the United States Supreme Court.
Oxford U. Press. 1992. (entry on the Second Amendment);
   Foner E and Garrity J. Reader's Companion to American
History. Houghton Mifflin. 1991. 477-78. (entry on "Guns and
Gun Control");
   Kates D. "Minimalist Interpretation of the Second
Amendment" in E. Hickok (ed.), The Bill of Rights: Original
Meaning and Current Understanding. Univ. Virginia Press.
1991.;
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Constitutional Right. Albuquerque, NM: U. New Mexico Press.
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   US Senate Subcommittee on the Constitution. The Right to
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   6     The pathetic minority supporting a collective right
only view:
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Century: Have You Seen Your Militia Lately?" Univ. Dayton
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26: 107-129. -- both written by paid general counsel of
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Amendment does guarantee a right of personal security, but
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   27     US v. Verdugo-Urquidez. 494 US 259 (1990).
   28     US Senate Subcommittee on the Constitution. The
Right to Keep and Bear Arms: Report of the Subcommittee on
the Constitution of the Committee on the Judiciary. United
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p. 288.
   29     US Constitution, Article 1, Section 8 (16).
   30     US Senate Subcommittee on the Constitution.
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1169 (N.D. Ill. 1981), aff'd 695 F.2d 261 (7th Cir. 1982),
cert. denied 104 S. Ct. 194 (1983).
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5 (1975).
   59     Warren v. District of Columbia, D.C. App., 444
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   60     for example, California Government Code ñ 845.
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   Neither a public entity nor a public employee is liable
for failure to establish a police department or otherwise
provide police protection service or, if police protection
service is provided, for failure to provide sufficient police
protection service."
   61     South v. Maryland, 59 US (HOW) 396, 15 L.Ed., 433
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   62     Hernandez M. "US Orders In Troops to Quell Island
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   68     Dred Scott v. Sandford 60 US (19 How.) 393 (1857).
   69     Laws of Mississippi, 1865, at 165 (29 Nov. 1865); 1
Documentary History of Reconstruction 289-90 (W. Fleming ed.
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   71     US v. Cruickshank. 92 US 542 (1876).
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   73     Debates and Proceedings of the Constitutional
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eof.