Boston University Law Review January, 1995
75 (1995): 57.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
GUN CRAZY: CONSTITUTIONAL FALSE CONSCIOUSNESS AND DERELICTION OF DIALOGIC RESPONSIBILITY
Andrew D. Herz *
A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment . . . . Our decisions belie that argument, for the Second Amendment was designed to keep alive the militia.
¾ Justice William O. Douglas
This is an Article about the causes and costs of false consciousness ¾ false consciousness regarding the constitutional concept of the "right to bear arms." This is an Article about the deceit, misperception, and dereliction of responsibility that have characterized America's dysfunctional gun control debate.
My focus is on the claim that every proposed regulation of firearms necessarily implicates the Second Amendment. The gun lobby has suc-[Page 58] cessfully spun a mythical broad individual right to bear arms for all legal private purposes. Yet the courts have consistently found that the Second Amendment guarantees a right to bear arms only for those individuals who are part of the "well regulated Militia" ¾ today's stateside National Guard. Despite widespread belief to the contrary, the courts have clearly held that there is no right to bear arms for self-defense, hunting, or shooting competitions, much less arsenal-building in preparation for resistance of potential domestic tyranny.
Those with the greatest ability and responsibility to challenge this constitutional myth ¾ politicians, journalists, and legal scholars ¾ have failed to do so. The body politic's widespread, and virtually unchallenged, belief in this vast right to bear arms has significantly undermined reform efforts to limit and regulate access to firearms. A constitutional false consciousness has perpetuated a system that provides notoriously easy access to all types of high-powered weapons. As a result, America has become the runaway world leader in gun violence, a place where:
• More than 38,000 people died from gunshot wounds in 1991 ¾ more than 100 men, women, and children for each day of the year. [Page 59]
• An estimated 222 million firearms are in circulation in a population of 260 million.
• One handgun rolls off an assembly line every twenty seconds, and someone is injured or killed by another handgun once every twenty seconds.
• Six states have already seen firearms surpass motor vehicles as the leading cause of death by injury, and if the current trend held [Page 60] in 1994, gun deaths have already topped annual motor vehicle deaths.
• Thirteen children are struck by bullets ¾ "stray" and not-so-stray ¾ each and every day.
• Gunshot wounds are the leading cause of death of African-American males aged fifteen to nineteen.[Page 61]
• The second most dangerous consumer product on the market is also one of the least regulated.
This Article contends that the prevailing Second Amendment deception represents an especially severe threat to rational policymaking in a representative democracy. An economically self-interested, single-issue pressure group has effectively mobilized a rabidly vocal minority to drown out and shout down virtually all other voices in the constitutional conversation. It is the judiciary's interpretations that set the boundaries of constitutionally permissible political action. Yet we cannot even hear the judicial voices that are supposed to be the primary arbiters of the Constitution. We must reform our nation's firearms laws using an accurate political map ¾ one whose terrain is free of phantom constitutional barriers discredited by the courts. We must undertake a rational cost-benefit analysis.
But we are not engaged in any such analysis, thanks in large part to the constitutional fish story told by the gun lobby, swallowed by the public, and rarely challenged by politicians, the media, or legal scholars.
Part I of the Article examines doctrine, reviewing the consistent case law that interprets the Second Amendment as providing a narrow individual right to bear arms only when necessary to maintain a "well regu-[Page 62] lated Militia." In light of this settled case law from the Supreme Court and ten circuit courts of appeals, Part I explains that the gun lobby's story of a broad individual right to bear arms for all legal private purposes ¾ barring virtually all regulation of firearms ¾ is untenable. The broad- individual-right view is, at best, a normative argument about what the Second Amendment should mean, rather than what it actually does mean today.
Part II explores deception, documenting the causes and costs of the constitutional false consciousness surrounding the Second Amendment. With its ritualistic refrain about "the right to bear arms" supporting an agenda that is part political and part commercial, the gun lobby has successfully seeded an American psyche already rich in its reverence for the gun. With its fanatical, quasi-religious insistence on adherence to the false gospel of a broad individual right to bear arms, the gun lobby has played an important role in blocking potential gun control legislation, and in perpetuating our extraordinary level of gun violence.
Part III alleges dereliction of duty, contending that political leaders, the media, and legal scholars owe the public a special "dialogic responsibility." Given their respective positions of power, influence, respect and access to effective means of communication, politicians, journalists, and scholars each have both the resources and the role-responsibility to con-[Page 63] tribute meaningfully and truthfully to our national dialogue on vital political and legal issues. Part III then analyzes how all three groups have failed to hold up their end of the constitutional gun control debate. These groups have failed to make the public aware of the judicial consensus rejecting the gun lobby's broad-individual-right position. That constitutional deception has reverberated, with insufficient explanation or challenge, throughout the halls of Congress, newsrooms, and our nation's law schools and law reviews.
The Article ultimately urges a more conscientious effort by politicians, journalists, and scholars to uplift the dialogue, to expose the delusional constitutional barrier, and to urge the public to explore the simple costs and benefits of a comprehensive regulatory approach to firearm manufacture, sale, and possession.
I. THE OPERATIVE AND FABRICATED MEANINGS OF 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.
A. A Tale of Two Stories
In their attempts to clarify the text of the Second Amendment and to sway public opinion, gun lobby and gun control advocates tell two competing stories. The gun lobby's story treats the Second Amendment as a broad individual right ¾ a near-absolute right for all law-abiding citizens to possess firearms for all private purposes, including self-defense, hunting, shooting competitions, and readiness for armed rebellion. Under this broad view of the Second Amendment, the textual focus rests almost exclusively on the guarantee in the Amendment's second clause, that "the right of the people to keep and bear Arms shall not be infringed." Gun-rights advocates propounding the broad view insist that the "well regulated Militia" was in 1791, and is today, made up of citizens bearing their privately owned firearms and gathering together independently, without government control. The broad view relies almost exclusively on an originalist interpretive stance, emphasizing what gun-rights litigator Don Kates has appropriately labeled the "personal attitudes of the Founders" ¾ statements in favor of private firearms ownership for assorted purposes, especially for the purpose of arming the citizenry as a precau-[Page 64] tionary counterweight against potentially tyrannical government.
The competing story told by gun control advocates treats the Second Amendment as a narrow or a limited individual right. Courts and commentators have often labeled this the "collective right" or "states' right" view. According to this story, the "right to bear arms" was established in 1791 only to preserve a well-regulated militia, and not to extend to purely private purposes. The arms-bearing right only applies to individuals using firearms for purposes that are necessary to maintain the well-regulated militia. Under this narrow view of the Second Amendment, the textual focus is primarily on the introductory clause. That clause is described as unique in the Bill of Rights: an explicit statement of purpose that modifies the "right of the people to keep and bear arms" in the second clause. Proponents of this limited reading contend that the "well regulated Militia" was a government-organized, trained, and disciplined fighting force drawn from a specified segment of the population, rather than a collection of all armed and independent citizens.
This narrow view relies in large part on twentieth-century developments surrounding the Second Amendment, and only partially on originalist materials. The originalist part of this story portrays the Second Amendment as a compromise between the Federalists' insistence on a strong federal government supported by a large standing army, and the Antifederalists' demand that the states maintain control over the existing state militias as a counterweight to the expanding federal power.
It is not the purpose of this Article to claim that any constitutional [Page 65] "clause can generate a uniquely correct answer" ¾ particularly when the clause's syntax is as confusing as that of the Second Amendment . But it is worth noting that the broad-individual-right view ¾ leaning so heavily as it does on colonial leaders' various statements of subjective intent ¾ seems unconvincing, even from a purely originalist standpoint. On closer examination, glowing testimonials from Founding Fathers such as James Madison and Patrick Henry to American's great "advantage of being armed" and "[t]he great object . . . that every man be armed" are even less persuasive, regardless of how many times the gun lobby trots them out. Gun-rights advocates manufacture many of the apparent endorsements of an expansive Second Amendment interpretation by stripping critical context from the original quotations. The "well regulated Militia" of 1789 was indeed well regulated by the government; it was not the independent, spontaneous gathering of armed citizens described by gun-rights activists. Although some gun-rights activists [Page 66] dismiss the introductory clause as nothing more than "a declaration of political philosophy," the plain meaning of that language suggests a narrow focus on the militia in defining the right to bear arms.
The drafting history of the Second Amendment further bears out that narrow focus. The Framers could have explicitly drafted a broad right to bear arms, had they so intended; compare the First Amendment's command that "Congress shall make no law" with the explicit qualification opening the Second Amendment. If the drafters of the Bill of Rights had intended to include self-defense or hunting within the scope of the arms-bearing right, they could have included appropriate language. Bill of Rights author James Madison and the entire First Congress were well aware of alternative, broader formulations that did not link the arms-bearing right to the militia, and that explicitly listed self-defense and/or hunting as private purposes covered by the right to bear arms. Yet they refused to adopt several such proposals offered by the Antifederalists and by the various state ratifying conventions.
Furthermore, we need not read the Second Amendment exclusively through the eyes of a small group of white property-owning males who lived in a world utterly different than our own. Ours is a "Living Constitution," one that must be read against the backdrop of changing social circumstances. In the words of Justice Brennan:[Page 67]
The ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. The gun lobby's broad-individual-right view falls apart in our time. The passage of two centuries has brought wholesale changes in the composition of the well-regulated militia, and in the role of firearms in American society.
B. "The Most Well-Settled Proposition in American Constitutional Law"
We must label the gun lobby's view that the Second Amendment guarantees a nearly unlimited right to bear arms for what it is ¾ a fabrication. [Page 68] But the broad view is not a fabrication only because it seems implausible in light of changed social circumstances. That expansive Second Amendment story is also a fabrication because it is not the law of the land.
In the wake of the only Supreme Court decision offering an extended analysis of the Second Amendment's scope, federal courts have invariably ruled that the Second Amendment right to bear arms applies only to those individuals using firearms in connection with their service in an organized state militia. An extraordinarily consistent body of case law has held that a variety of restrictions on private firearms ownership, use, and sales do not violate the Second Amendment, because such restrictions have no effect on the maintenance of a well-regulated militia ¾ the National Guard. As former Solicitor General Erwin Griswold once wrote: "[T]hat the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American Constitutional law."
1. Supreme Court Case Law
In the 1939 case of United States v. Miller, the Court unanimously approved the indictment of two individuals for transporting an unregistered sawed-off double-barrel 12-gauge shotgun in interstate commerce. The Court found that there was no evidence to show that the weapon had "some reasonable relationship to the preservation or efficiency of a well-regulated militia." The case's holding is unfortunately less than crystal clear. Miller presented an appeal from a quashed indictment; the Court had no record evidence in front of it, and simply declared that it would not take judicial notice of sufficient facts to demonstrate that the shotgun was useful to the militia. But more significant than Miller's holding is the Court's discussion of the Second Amendment's "obvious purpose." The Amendment "assure[d] the continuation and render[ed] possible the effectiveness" of the militia contemplated in Article I, section 8, and "must be interpreted and applied with that end in view." The Court subsequently made clear that the governmentally organized stateside National Guard, not privately armed citizens, is the contemporary equivalent of the Second Amendment's well- regulated militia. [Page 69]
Gun-rights litigators and activists frequently characterize Miller as granting constitutional protection for all military weapons, because the case focused on the nexus between the weapon and the militia. Under this reading, the Court's interpretation would have granted citizens the right to keep and bear bazookas, rocket launchers, and grenades.
But the Court went only as far as was necessary to dispose of the case before it. The Miller holding most plausibly means only that it is a necessary condition that a firearm be useful to the militia and an individual's service therein, not that military utility is a sufficient condition to grant constitutional protection. The individual using the firearm still must be doing so in the context of service in a government-organized (not independent) militia. The Court did not say that the Second Amendment protected the use of military-type firearms for any other purposes, nor did it ask whether the seized shotgun might be related to nonmilitia purposes such as self-defense or hunting.
In a nineteenth-century case, Presser v. Illinois, the Court damaged another central theme in the gun lobby's broad-individual-right story. In Presser, the defendant organized and led a parade of rifle-bearing members of a German nationalist organization without obtaining the permit required under the challenged Illinois statute. That statute prohibited any group of men other than the officially organized Illinois voluntary [Page 70] militia from associating as a military organization. The Court rejected the idea of a right to bear arms in order to organize independent armies or to prepare for insurrection against a potentially despotic government.
This insurrectionist view of the Second Amendment simply made little sense in light of the militia's constitutionally commanded role of "suppress[ing] insurrections." As one commentator has succinctly contended:
How can the militia be a collection of citizens with the constitution-[Page 71] ally guaranteed right to engage in armed resistance against their government if the Constitution itself grants Congress the power to call out the militia ["to execute the Laws of the Union [and] suppress Insurrections"?] The Constitution cannot view the militia both as a means by which government can suppress insurrection and as an instrument for insurrection against the government.
Thus not only has the Court rejected the broad-individual-right view; it has also rejected any private right to bear arms for collective insurrectionist purposes.[Page 72]
The Supreme Court has consistently reaffirmed its narrow reading of the Second Amendment in various substantive due process challenges. Early on, the Court repeatedly rejected attempts to incorporate the Second Amendment into the Fourteenth; therefore the "right to bear arms" poses no restrictions on the states. Gun-rights activists have argued that these decisions are meaningless because they came prior to the onset of modern incorporation doctrine. But the Court has not seen fit to revisit those earlier decisions, refusing to grant certiorari in any of the cases dismissing Second Amendment challenges to state regulations on non-incorporation grounds. The NRA recently chose not to press an incorporation claim before the Court after rejection in Fresno Rifle & Pistol Club v. Van de Kamp.
Faced with a more modern substantive due process challenge in Lewis v. United States, the Court found no fundamental right to bear arms, and applied only rational basis scrutiny in upholding federal restrictions [Page 73] on firearms ownership by convicted felons. The Court noted that such restrictions "are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." Despite gun lobby claims to the contrary, the Court has said nothing to suggest that it has retreated from the narrow view of the Second Amendment expressed in Miller and Lewis.
2. The Circuit Courts of Appeals
The narrow view of the Second Amendment is settled law in the federal courts of appeals. In Miller's wake, ten circuits have explicitly adopted a narrow reading of the right to bear arms, and one other[Page 74] seems similarly inclined. Every federal appellate decision since Miller has rejected the broad-individual-rights position and focused instead on whether use of a weapon was related to maintenance of a well-regulated militia. Every such court faced with the gun lobby's claim that Miller extends constitutional protection to all weapons with military utility has squarely rejected that assertion.
By way of example, the Tenth Circuit has noted that "[t]he purpose of the second amendment as stated by the Supreme Court in [Miller] was to preserve the effectiveness and assure the continuation of the state militia." Similarly, the Seventh Circuit reviewed Miller in the process of [Page 75] upholding the ban of the Village of Morton Grove, Illinois on handgun possession, and wrote: "Construing this language [of the Second Amendment] according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia."
Two more recent cases demonstrate not only that this narrow-individual-right view prevails, but also that the courts of appeals are unwilling to entertain variations of Second Amendment concepts when those variations imply a broad individual right to bear arms. The decision of Farmer v. Higgins illustrated the bankruptcy of the "any-military-weapon" reading of Miller. The Eleventh Circuit brusquely dismissed as "without merit" Second Amendment challenges to a law that the NRA called "the first ban on firearms possession by law-abiding citizens in American history": a federal ban on private ownership of automatic machine-guns obtained after May 19, 1986. Surely automatic machine-guns (weapons that keep firing once the trigger is pressed) have military utility. Indeed, the RNA's Firearms Legal Defense Fund's unsuccessful Petition for Certiorari challenged the Eleventh Circuit's decision by pressing this point and the any-military-weapon characterization of Miller.
In 1992, gun-rights activists presented the Eighth Circuit with some variations on this theme in United States v. Hale. They claimed that the Second Amendment offered a judicially enforceable collective right, or that it presented a fundamental individual right. Interestingly, that court did not even feel the need to discuss the "collective right" versus "individual right" distinction, stating: "Whether the 'right to bear arms' for militia purposes is 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia." Rejecting the challenge to a federal restriction on machine-gun ownership, the panel also observed that the claim of a "fundamental right to keep and bear arms . . . has not been the law for at least 100 years."
Quite simply, subsequent to Miller's statement that the "obvious purpose" of the Second Amendment is to maintain the well-regulated militia, federal and state courts have upheld a panorama of record-keeping, regis-[Page 76] tration, dealer licensing, and felon-exclusionary firearms restrictions, as well as universal bans on private ownership of both handguns and machine-guns. Courts have also consistently rebuffed the standard gun-lobby claims that the Second Amendment provides a right to bear arms in order to hunt or to provide for personal self-defense. Finally, arguments for a right to organize private militias have likewise fallen on deaf [Page 77] judicial ears.
3. Letting Settled Law Lie
For more than fifty years, the Supreme Court has consistently refused to expound on Miller. The Court has denied certiorari in at least nine cases in which the lower courts relied on Miller to reject Second Amendment challenges. More tellingly, the Court dismissed still another appeal for want of a substantial federal question. Although orthodox understanding views a denial of certiorari as making no comment on the merits, the Court's long-standing laissez-faire attitude indicates, at a minimum, a deep disinclination to disturb existing doctrine.[Page 78]
The Supreme Court's reluctance to review any Second Amendment case may, indeed, suggest even more than mere inertia or lack of interest. Peter Linzer has argued that "the orthodox view [regarding certiorari denials] is oversimplified, and in some cases, false." His study of certiorari denials lends support to the theory that the Supreme Court has long approved, or at least not disapproved, the narrow understanding of the Second Amendment adopted by the circuit courts of appeals. Linzer notes that "a remarkable number of federal and state court opinions" find that "because of some special circumstance, a certiorari denial in a particular case indicated the Court's view on the merits." Two of those "special circumstances" are important here: (1) "cases in which the Supreme Court had denied certiorari in a similar case in [the] face of a claim that the fact situation was governed by a still earlier precedent"; and (2) "a related category of cases in which the Court had denied certiorari despite the great importance and controversial nature of an earlier lower court holding or series of holdings identical to the one being made by the current lower court."
The first of these circumstances takes into account the established certiorari "policy" of the Court, as embodied in Supreme Court Rule 10. That rule contains a list of factors that, "while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered" when evaluating petitions for certiorari. The factor relevant to this discussion is:
(c) When a state court or a federal court of appeals has decided an important question of federal law which has not been, but should be, settled by this Court, or has decided a federal question in a way in conflict with applicable decisions of this Court.
Linzer's view is, in effect, that a pattern of certiorari denials strongly suggests that the certiorari requirements have not been met with respect to a particular issue. This in turn leads to the conclusion that lower court decisions simply are not in conflict with the Court's precedent, as the Court itself views that precedent.[Page 79]
In the course of a half-century's worth of Second Amendment challenges, state and lower federal courts have presented the Supreme Court with decisions that restrict the scope of Miller as well as decisions that take wholly different paths. Upholding local handgun regulations, the District of Columbia Court of Appeals explicitly rejected the any-military-weapon view of Miller and echoed "numerous other courts" in finding that "the Second Amendment guarantees a collective rather than an individual right." In six other cases in which the Court denied certiorari, the First, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits each in turn explicitly or implicitly relied on Miller in embracing an exceedingly narrow vision of the Second Amendment. To the extent that the Rule 10 factors are taken seriously, these decisions describing the Second Amendment in the narrowest terms seem neither to have broken ground unplowed by the Miller Court, nor to have reached a conclusion in conflict with the Court's understanding of Miller's reading of the Second Amendment.
The nine denied petitions for certiorari add up to provide the second set of circumstances that give meaning to certiorari denials: Taken together, they surely constitute "a related category of cases" rejected by the Court "despite the great importance and controversial nature" of these consistent earlier lower court holdings. As Linzer concludes, "When the Court several times refuses to review a consistent lower court position, there is certainly a stronger argument that the denials mean something than when the Court does nothing more remarkable than deny certiorari in one similar case."[Page 80]
The argument seems stronger still in light of the Supreme Court's per curiam dismissal of an appeal for want of a substantial federal question in Burton v. Sills. In Burton, the Court refused to hear a gun-lobby-supported challenge to the New Jersey Supreme Court's 1968 holding that the state's gun control laws did not violate the Second Amendment. Adopting the narrow view of the Second Amendment, the New Jersey court found that the state's licensing requirements for manufacturers, wholesalers, and retail dealers, as well as permit and identification card requirements for purchasers, did "not impair the maintenance of the State's active organized militia" and thus were "not at all in violation of either the terms or purposes of the second amendment."
The Court's summary disposition of Burton itself carries significant precedential weight ¾ such summary action binds both the Court itself  and lower courts. A summary affirmance "without doubt" rejects "the specific challenges presented" to the Court for review. The difficulty is, of course, determining the "precise issues presented and necessarily decided" by the lower court, for it is only challenges to those issues that the Court rejects.
The gun-rights advocates in Burton raised several issues in their jurisdictional statement. Of interest here is their Second Amendment challenge, which the New Jersey Supreme Court unfortunately rejected on two alternative grounds: (1) The court held that the Second Amendment was not incorporated into the Fourteenth; and (2) even assuming such incorporation, the Amendment had a narrow, militia-centric scope, and [Page 81] thus did not preclude regulation of private firearms ownership. Because the Supreme Court's summary affirmance did not specify which of these grounds it relied upon, the value of Burton is unclear. However, at the time of the Court's action, the incorporation debate was at its zenith. With the contemporaneous trend toward more incorporation, the summary disposition of Burton suggests a Court willing to stick by its Miller decision.
Finally, there are several indications that the prospects are dim for a sudden reversal in this unified field. The gun lobby might take heart in the fact that it requires only four Justices' votes to obtain certiorari ¾ four votes from a Court as politically conservative as the one led by William Rehnquist and prodded by Antonin Scalia. Yet the Rehnquist Court, willing (if not eager) to depart from stare decisis in the areas of habeas corpus and civil rights, shows no such signs on the Second Amendment. The current Court has continued the trend of certiorari denials in this area. It is possible that even the NRA recognizes that the law is settled, for the NRA was unwilling either to petition for certiorari after the recent Ninth Circuit decision upholding the California assault-weapons ban, or to challenge the Brady Law, on Second Amendment grounds.[Page 82]
The Miller Court's narrow reading of the Second Amendment has been well understood and well received by the lower courts, and the Supreme Court seems unwilling to disrupt that understanding. Miller's legacy is readily apparent: The Second Amendment is neither "embarrassing" nor "terrifying." It is, in fact, "obsolete." The Second Amendment's operative guarantee is only "that the Congress shall not infringe upon the right of a state to maintain its militia and should not so disarm a citizen as to prevent him from functioning as a militiaman in the organized state militia." Barring a complete abandonment of more than fifty years of settled jurisprudence, no gun control law restricting or regulating any aspect of private purchase, use, or possession of firearms should see invalidation on Second Amendment grounds.
II. THE CAUSES AND COSTSW OF CONSTITUTIONAL FALSE CONSCIOUSNESS
Gun-rights advocates employ two basic arguments against all gun control proposals:
(1) The proposal represents a misguided policy choice and is therefore inadvisable;
(2) The proposal violates the Second Amendment, and is therefore impermissible.
The first of these ¾ the policy argument ¾ revolves around three central claims, each profoundly misleading: (1) "Guns Don't Kill, People Do";[Page 83] (2) "Outlaw Guns and Only Outlaws Will Have Guns"; and (3) "There are already 20,000 state and national firearms regulations, and those cities with the strictest gun control have the highest crime rates." Though [Page 84] exaggerated and misleading, these policy arguments are entirely appropriate topics for discussion. The gun lobby's second basic argument, on the other hand, materially misstates the meaning of the Second Amendment. As Part I explained, the NRA's constitutional trump card is a fake. The gun lobby's constitutional bluff has unfortunately convinced many citizens and public officials to fold their hands, or to play for smaller stakes. On a mission to thwart significant firearms regulation initiatives, the gun lobby has narrowed the scope of the gun control debate. Mutually reinforcing political, commercial, and quasi-religious forces have instilled in the American public the false consciousness of a sacred and sweeping individual "right" ¾ at massive social cost.
A. What Is the NRA?
1. The Political Lobby
Wayne LaPierre, the NRA's Executive Vice President, recently rallied the faithful with a cry of rededication to the organization's "singular purpose as guardian of the Second Amendment." The NRA fulfills its self-conferred role as constitutional guardian by waging a nationwide struggle against virtually all measures that would in any way regulate or restrict access to firearms. The NRA is a relentless single-issue lobby-[Page 85] ing machine, spending $22.4 million on such activities in 1993. The [Page 86] organization's primary lobbying arm is the Institute for Legislative Action ("ILA"), which issues frequent "legislative alerts" to NRA members and aggressively recruits and trains state and local gun clubs to be effective grass-roots lobbyists.
The NRA often employs a bit of hyperbole ¾ what one author describes as the "Armageddon appeal" ¾ warning the 3.3 million NRA members that, for example, gun control proposals are "the first step toward . . . a federal police force disarming the law-abiding populace." And the alleged slippery slope hardly ends with gun confiscation. The mildest gun control proposal triggers warnings that "unless NRA members fail to [sic] become outspoken, highly-visible defenders of the Constitution, the Second Amendment will fall, followed by our other sacred freedoms ¾ religion, speech and press."
The gun lobby's extremism has to some extent backfired in recent years, having led to repudiation by the law-enforcement community and sportsmen's groups, as well as legislative setbacks at the state and national levels. There are sustained rumblings of financial problems[Page 87] and internal dissension. Yet it would be foolish to underestimate the [Page 88] power of the lobby once deemed the "Terminator of American Politics." Indeed, the Spring of 1994 brought a federal ban on assault weapons, and reports of an NRA near-death. These reports appear sadly premature in the light of a cold Winter 1995 morning, for in the wake of the midterm election, the NRA is poised to call in a contract with the new House majority and seek repeal of the 1994 legislation.[Page 89]
The coming battle promises to be ugly. The NRA has long demonstrated a willingness to wield any potentially effective weapon, no matter how crude. Politicians fear the NRA not only because its members often vote strictly on the basis of gun control stances, but also because the group is not afraid to take the low road. Playing on its membership's twin dreads ¾ the fear of crime and the fear of Big Brother's storm-troopers confiscating their weapons ¾ the NRA convinces its agitated and oft-misled members to engage in aggressive and highly effective grassroots lobbying efforts. Gun-lobby leaders and their supporters have frequently misrepresented the provisions of pending legislation, and have bullied and [Page 90] smeared enemies. When one adds the NRA Political Victory Fund's careful deployment of millions of dollars in annual donations to benefit friends and target enemies, the NRA remains anything but a paper tiger.
2. Selling the Product
As a second role, the gun lobby works hard for the financial interests of the firearms industry, and of the NRA itself. The NRA depends upon gun manufacturers, and gun manufacturers depend upon the NRA to function "as a pro forma trade association for the firearms industry," taking the heat in legislative battles, and "cloak[ing] all firearms controversies in the bullet- proof vest of constitutionality."
NRA publications and events serve to trumpet new firearms and ammunition. For instance, the cover of the April 1994 American Rifleman exclaims "NRA PRESENTS TODAY'S NEW GUNS." Most of the advertising dollars inside NRA publications come from the firearms industry, and the American Rifleman's publishers are certainly ready to return the favor with positive editorial copy. Readers are frequently warned that criminals lurk just around each corner, so the readership must own guns for self-protection. The NRA pulls no punches in [Page 91] warning its members that it must fear not only the hoodlum street thugs, but also Uncle Sam's "storm troopers." Fear is a powerful sales device. "Fear sells guns."
New markets ¾ particularly the youth and women's market ¾ are aggressively targeted by advertising and editorial copy, by firearm manufacturers' promotions, and by NRA political posturing. Dozens of pages in each issue extol the virtues of new rifles, pistols, ammunition, and accessories. Negative reviews are exceedingly rare, because the NRA is an unabashed firearms-industry cheerleader. The cheers come despite the fact that gunmakers' profits come from products designed to deal death ever-more quickly and surreptitiously. The cheers continue [Page 92] despite the fact that these necromerchants often target their products for use by children and criminals.[Page 93]
The NRA is concerned with its own business as well. The gun lobby's frequent financial self-promotion shows up in ads asking members to "Plan A Gift to NRA in Your Will." The NRA displays weapons at its annual meetings, provides NRA membership applications for manufacturers to include in weapons' packaging, and offers firearms as prizes in many of its mailings. The gun lobby and the firearms manufacturers need each other. The direct link to firearms-dealing appears almost satirical in the NRA Round Up program, which has businesses ask customers to round-up purchase order amounts to the nearest dollar, contributing the excess change to the NRA. A change collection jar for the local Ronald McDonald House this program is not. As one gun control advocate argues, "The common goal of this long-standing union is expansion of the domestic firearms market. Guns equal dollars ¾ increased sales for the industry and new members for the NRA . . . . For both the industry and the NRA, gun control is literally bad for business."
3. The Firearms Fundamentalists
Like some other high-profile late-twentieth-century fundamentalist movements, the NRA merges motives both religious and remunerative. The gun lobby's cavalier treatment of the constitutional text, and of the judicial consensus rejecting the broad view of the Second Amendment, must be understood as a quasi-religious movement, as well as simple political and marketing strategies. Former NRA Executive Vice President Warren Cassidy once said that people should view the NRA "as if [they] were approaching one of the great religions of the world." [Page 94] Some religious leaders oblige from their end. One Pensacola, Florida minister, Chuck Baldwin, actively preaches the firearms faith, giving sermons on "Christian combat."  The upper echelons of the NRA serve as the spiritual leadership of American firearms fundamentalism. As it is in many religious systems, "creative textual reading[ ]" is a hallmark of the NRA's theology.
NRA members have absorbed their movement's canonical version of the Second Amendment. The fourteen hallowed words of the Second Amendment are apt to show up anywhere and everywhere in an NRA home, like a cross to a devout Christian. When members sip their first cup of coffee in the morning, many do so from mugs bearing the legend THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED. If they light up a cigarette with their coffee, chances are good they'll use a lighter adorned with those same words. And when they go out into the world, their pants may be held up with a belt whose buckle boldly proclaims: THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.
Most NRA members believe passionately in the images of freedom and self-sufficiency they see embodied in gun ownership. Though the "right to bear arms" is important in itself, it is the bundle of emotional and psychological connotations of firearms ownership that stirs the passion of most gun owners. Gun-rights advocates view unrestricted firearms ownership as the ultimate expression of "freedom," a word for which the gun preachers reserve their most prayerful tones. Gun enthusiast Dave Twigg says that "[f]irearms represent freedom, a means for the individual to rise above his circumstances in terms of threats. An armed person has the means to protect their lives, their property and their loved ones."
The images surrounding the "right to bear arms" center around freedom and power. Ever-threatening intrusions by criminal predators and despotic government forces must be resisted by any means necessary.[Page 95] Government is the real villain in either case. Playing a familiar American tune, the gun lobby offers a libertarian indictment of Big Government, on the one hand conjuring up visions of powerful gun-grabbing Washington confiscators knocking down the doors of law-abiding citizens. On the other hand, the gun lobby bemoans the impotence of local police forces that cannot protect citizens from violent crime. Guns offer freedom and power in this supposedly ever-more despotic and dangerous world. Dr. Jona Perlmutter, Professor of Clinical Psychiatry at UCLA, believes that "[g]uns are a way of coping with inadequacy, helping us maintain a false image of power and strength. Larger guns only show us how much smaller we're feeling ourselves in the face of the societal changes around us." Guns equal freedom and guns equal power, whether it is the fanciful notion of taking up arms against a regime seen as potentially or presently repressive, or the somewhat more plausible but risky hope of using a firearm to defend self, home, and family.
To many Americans, guns also equal respect unfairly denied. A gun guarantees a measure of respect and power in a place that seems increasingly disrespectful and threatening. For many children in the inner cities today, guns have become "something personal, a symbol of a terrible sort of power for a group that might not have felt very powerful in other [Page 96] facets of life." Guns are viewed as guaranteeing their holders certain respect because guns are the tools for doling out instant punishment when someone acts in a disrespectful manner. Fear of crime and personal insecurity riddle individuals from all socioeconomic groups. Hence, the lure of the gun as a symbol of respect borne of power crosses all demographic lines.
The powerful emotional connections between firearms and freedom, and between firearms and personal potency, reflect the central role cast for guns throughout past and present American experience. In the retelling of history both distant and recent, guns are the stuff of myths, and gunmen, good and bad, are treated as larger-than-life figures. The pages of the NRA's American Rifleman reveal many nostalgic frontier images and the gun lobby's lingering love affair with the simpler days of the Wild West ¾ a time when the good guys always triumphed.
It is often said that America was "born . . . 'with the rifle in its [Page 97] hand.'" In the earliest days of the nation, widespread ownership of firearms was a necessity. "Especially in the backwoods, the long gun was the instrument that put meat on . . . tables and defended . . . against the attacks of hostile native tribes. To help feed and protect their families, boys learned to shoot by the age of twelve." But America's lingering love affair with the gun must be understood more in the context of historical mythology than meaningful history. "[L]ong after the weapon had ceased to be indispensable to domestic survival and nation-building, generations of Americans continued to embrace and glorify it as a living inheritance ¾ as a permanent ingredient of the nation's style and culture." The late historian Richard Hofstadter asked:
Why is the gun still so prevalent in a culture that for the last century and a half has had only a tiny fragment of its population actually in contact with a frontier, that, in fact, has not known a true frontier for three generations.
Perpetuating the frontier firearms legend is big business in all aspects of popular culture. Pop history on television and at the movies emphasizes the role of guns in taming the frontier. From 1903's The Great Train Robbery, through Gary Cooper's classic performance in High Noon, and to the present day, Wild West figures have always been celluloid heroes. Gunmen are celebrated whether they were lawmen (Wyatt Earp, Wild Bill Hickok, or Bat Masterson) or outlaws (Billy the Kid, John Wesley Harding, or Butch Cassidy and the Sundance Kid). The same pattern of glorifying gunmen, good or bad, continues in movies relating modern gun parables. Gun-toting G-Men under Elliot Ness are only slightly more glamorized than their 1920s-gangster counterparts like Dillinger and Capone.
Beyond the frontier imagery, the visual media of television and film constantly glamorize and even eroticize the gun and gunmen. Guns themselves sometimes seem to be the central attraction. Just as The [Page 98] Rifleman did for an earlier era of long-guns, shows like Miami Vice and the A-Team made stars out of high-tech semiautomatic weapons in the 1980s, sparking fascination for and interest in owning similar firearms. More often the strong, sexy, and admirable stars are the gunmen. Tough guy, trigger-happy cops like Clint Eastwood's Dirty Harry are turned into law-and-order icons. Vigilantes like the Charles Bronson character in the Death Wish movie series became heroes of a middle class angry and frightened by rising street crime. Bonnie and Clyde can be sexy pop heroes. So can gun-wielding random killers like Brad Pitt's toothbrush-chewing character in the film Kalifornia, or Woody Harrelson's crazed "Mickey" in the film Natural Born Killers. One recent Sylvester Stallone-Wesley Snipes vehicle, Demolition Man, went so far as to ridicule the notion of a post-gun-culture world as one controlled by effeminate men with English accents and Japanese clothes, one offering little humor or sexual excitement. And in a distressing twist on feminism, female stars have begun to fill similar shoot-em-up roles. Women prove that they can handle heavy firepower too; Bridget Fonda sports all manner of combat weapons in Point of No Return and Geena Davis [Page 99] and Susan Sarandon get off a round for gun-toting feminism by shooting a would-be rapist and blowing up a sexist male driver's gasoline tanker in Thelma and Louise. The music world increasingly plays the gun tune as well.
While television, film, and song glamorize and eroticize, and thereby inculcate a pro-gun view into society, those media simultaneously desensitize the audience to the horrors of gun violence. They treat a national audience to thousands of murders and other acts of violence each year in action movies, television dramas, cartoons, and true-crime news. From Daffy Duck's uncanny ability to emerge from point-blank shotgun blasts with only scorched feathers, to the carefully choreographed bullet-ballets in big- budget action movie series like Lethal Weapon, Rambo, RoboCop, and Die Hard, each battle is more brutal in its comic-book intensity than the previous. Each bout of comic or carefully choreographed "gunplay" deadens our sense of horror at the brutality, and blinds us to the torn flesh and spilled blood that comes with each real gun injury. Researchers agree that [Page 100]
[v]iolent imagery reinforces and encourages aggressive behavior in children already inclined to aggression; television and movie violence desensitizes the population as a whole to real-life violence; television and movie violence plays a role in criminal behavior, although poverty, drugs, gangs, child abuse and the availability of guns are more direct causes.
The effects of these sounds and images should not be discounted. Inmates serving time on gun-related charges told Washington Post reporters that they "often tried to compare themselves to characters in a romanticized version of the Wild West." The convicts said that "[s]hooting a gun was 'exciting'. . . . Shooting a gun was fun." A gun made them feel like John Wane.'" One gunman claimed that his inspiration to shoot a Texas highway trooper was a "gangsta" rap tune by Tupac Shakur. The eroticization of movie gunplay is also replayed in the streets: The inmates interviewed by the Post "compared shooting to sexual [Page 101] intercourse."
Furthermore, for millions of Americans, worshipping firearms is a far more active process than mere passive absorption of the gun imagery that pervades the mass media. Rituals associated with the firearms faith include the devoted maintenance and display of antique rifles and pistols, collecting the minutiae of information on guns, and spending sleepless nights on the eve of the first day of deer season.
Guns are often central characters in the rites of passage acted out by youngsters all over the nation, in both urban and rural settings. For many kids, falling in love with the gun may begin with a glimpse of some powerful weapon in the hands of Rambo or Batman. The romance quickly moves to the toy store, where many merchants display row after row of realistic firearms, everything from the popular "SuperSoaker 200" water gun to the "Combat Gear Electronic Gun" (with four different electronic sounds: "clip loading," "3 shot burst," "20 shot automatic," and "full action battle"), and the "X1 Recoil Blaster" (whose owners can "actually 'feel' the gun fire" with realistic recoil action, bright green pulsating light and robotic voice commands, including "fire, fire, fire").  "[E]xperts who have studied the relationship between children and their toys say playing with fake weapons has no redeeming value and only desensitizes children to the shocking reality of crime and firearms."  Some kids start this desensitization process by making war with these all-too-real toys. Others need not wait that long to learn about guns. They can start when they begin to learn their "ABCs."[Page 102]
These gun-toting rites of passage from childhood are important. As a result, and like many religions, firearms fundamentalists depend on the inculcation of belief and rituals in youth. As the NRA officially recognizes: "The youth of America are our future. . . . [W]ithout their interest and involvement, there will be no gun ownership or hunting." The NRA backs up that commitment with action: The Whittington Center Adventure Camps offer to teach youngsters, aged thirteen through seventeen, fundamental marksmanship skills and sports like rifle silhouette, high power rifle, trap, and skeet. American Rifleman promotes "Youth Guns Today" in a feature story. The NRA's Firearms Civil Rights Legal Defense Fund sponsors an essay contest for all elementary, junior high, and high school students "celebrating the Second Amendment as an integral part of the Constitution and the Bill of Rights." The NRA sells a "Youth Coloring Book" ¾ David's First Hunt .
Firearms fundamentalism showers great praise on the faithful "us," and scorn on the heretical "others." "Us" is the good NRA member, and "them" is the lurking "other" of street criminals, a media perceived as anti-gun-owner, and a government portrayed as a collection of left-leaning gun-grabbers. New NRA members receive a patriotic "love-bombing," as they are welcomed into the fold of like-minded God-fearing and Constitution-loving folk, and are assured that they and all other NRA members are better than the rest of America. This is a classic [Page 105] mixture of us-loving and other-loathing: our good Americans v. their bad Americans, our good Christians v. their bad Christians, our good families v. their bad families, and our good kids v. their bad kids. The gun lobby uses this "us v. them" mentality effectively. Members are assured, via "personalized" mass mailings, that they are comrades in arms, intimate allies ¾ vital to an NRA leadership engaged in righteous struggle.
B. What the Gun Lobby Has Wrought
Whether viewed primarily as a political lobby, an informal trade association, or an order of firearms preachers, it is clear that the gun lobby has been tremendously successful. Its victories in derailing gun control legislation vastly outnumber its recent failures. Much of the public has accepted NRA dogma as gospel, and firearms and related products sell very well. The gun lobby has successfully drawn narrow parameters around the gun control debate, has bottled up the vast majority of national legislation to regulate firearms, and has perpetuated the political, emotional, and commercial conditions necessary to maintain the wide availability of an almost unlimited selection of high-powered rapid-firing firearms.
1. Constitutional False Consciousness
The philosophical foundation of the NRA's entire political struggle is its Second Amendment sleight-of-hand. The gun lobby's misinformation campaign distorts the constitutional text itself. It is not "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," but rather " The right of the people to keep and bear Arms shall not be infringed." Official [Page 104] NRA products, from belt buckles to beer mugs, eliminate that troublesome introductory clause.
Dishonesty also dominates the gun lobby's discussion of the judiciary's read on the Second Amendment. Gun-rights advocates argue not only that the Second Amendment should provide a broad, nearly absolute individual right to bear firearms, but that the Amendment does in fact guarantee all individuals a personal "right to bear arms" for all legal, private purposes. The gun lobby insists that the Second Amendment is an all-purpose barrier to virtually all gun control proposals. This claim hardly squares with the exceedingly narrow judicial reading of the Second Amendment. As discussed in Part I, the courts have also squarely rejected the specific claims of gun-rights activists ¾ that the Second Amendment guarantees a right to bear arms for self-defense, for hunting, or in preparation for potential insurrection. But gun lobby leaders either ignore or downplay the striking judicial consensus when speaking directly to their followers, to the general public through the mass media, or to academic audiences in law review pieces.[Page 105]
Viewing the Second Amendment as an absolute barrier to firearms regulation is like the assertion that the First Amendment's Free Speech Clause absolutely prohibits any speech regulations. To claim that the operative meaning of the First Amendment is that all forms of expression enjoy absolute protection is simply wrong. The gun lobby's tale of a sweeping individual right to bear arms for any legal private purposes is similarly wrong. If we define "legal certainty" as "predictability of judicial decision," then it is a legal certainty that the Second Amendment guarantees only the right to bear arms in the context of service in a state militia. The broad view has seen condemnation by former Solicitor General Erwin Griswold, six former Attorneys General, former Chief [Page 106] Justice Warren Burger, and even the foremost proponent of the NRA's beloved "originalism" ¾ Judge Robert Bork. Given this consensus, the gun lobby's story of the Second Amendment is law as intentional deception, not "law as integrity."[Page 107]
Although it is a "legal certainty" that the Second Amendment is an all-but-dead letter in the courtroom, that certainty fades as you travel beyond the courthouse steps. Out in the heartland, the "right to bear arms" resonates in the hearts and minds of a very vocal and active portion of the American public. Nurtured if not conditioned by the gun lobby's barely-challenged drumbeat of propoganda, these people believe in the "right" ¾ constitutionally or divinely ordained ¾ to bear arms against brutal thugs and feds. In today's America, that popular constitutional interpretation carries more weight that the clear judicial consensus.
This may strike some as an endearingly populist sense of legal meaning. But it ignores the judiciary's supposedly primary role in constitutional matters. Dialogic legitimacy has been denied to those best trained to interpret the Constitution. In their place a single-issue pressure group ends up dominating the public discussion of a critical constitutional question.
During the 1993 hearings on the Brady Bill, leading gun control advocate Representative Charles E. Schumer (D-N.Y.) told one pro-gun lobbyist that "the [NRA] leadership . . . misleads its members and that is why we don't have rational gun control policy, and why you're getting weaker and weaker and weaker. You are so far over that no one believes you anymore." Schumer's claim is supported by a number of surveys indicating that the general public, and even the NRA's own membership, increasingly views the gun lobby's leadership as unnecessarily extremist. But Schumer is wrong if he actually thinks that "no one believes [the NRA] anymore." The gun lobby's constitutional misinformation campaign has successfully implanted the notion of a vast right to bear arms for all legal private purposes.
Most people do believe the NRA leadership when pro-gun activists raise the critical constitutional barrier and speak of a broad right to bear arms. The NRA has repeated its constitutional deception so often, and for so many years, that its fictional quality has been forgotten. A late 1991 Los Angeles Times poll found that only thirty-nine percent of those responding felt that the Constitution should protect the right of all individuals to own guns, but that sixty-two percent of those surveyed believed [Page 108] that the Bill of Rights explicitly granted such a right. Other surveys have documented a similar ignorance of the Second Amendment's narrow judicial interpretation. Even among NRA members and employees there are quite a few who do not have any idea what the language of the Second Amendment even is. "Primarily as a result of the NRA's efforts, the Second Amendment is the most misunderstood provision contained in the Bill of Rights." One legislator, weary of the NRA's misinformation campaign, told his House colleagues that:
[T]he second amendment has been twisted. Its purpose and intent has been distorted and perverted by gun control fanatics whose view it is that guns may not be regulated or controlled in any way, and they have fooled us, hoodwinked the American people into believing that we cannot control guns. We violate the Constitution if we do so. The second amendment does not say anything like that, but they interpret it that way, and they have managed to convince very large numbers of intelligent people that any gun regulation is unconstitutional.
Indeed, constitutional false consciousness has claimed fair-minded gun-lobby analysts like Osha Gray Davidson, and even ardent gun control activists like Handgun Control, Inc. presidents ¾ both Pete Shields and [Page 109] Richard Aborn have spoken of the mythical "right to bear arms."
Gun-rights litigator Don Kates correctly employs the passive voice in contending that "[t]he individual right view is . . . accepted by a majority of the general populace." Few Americans have the time or interest to read the relevant case law. Ignoring or mischaracterizing the consistent case law arrayed against its position, the gun lobby thumbs its collective nose at the judiciary, and at the significance of the judiciary's role in interpreting the Constitution.
With its incessant assertion of a broad individual right to bear arms hoodwinking much of the public, the gun lobby has successfully slipped a false "trump" card into the political deck, a bogus "rights" ace deemed more powerful than any vision of the common good. The ultimate [Page 110] insidious effect of the gun lobby's constitutional distortion is the creation of an artificial tension between rights and the common good by claiming a phantom right to keep and bear firearms. Like much of the simplistic, exaggerated "rights talk" common in modern-day America, the gun lobby's "stark, simple rights dialect puts a damper on the processes of public justification, communication and deliberation upon which the continuing vitality of a democratic regime depends. . . . It impedes creative long-range thinking about our most pressing social problems."
The gun-rights advocates' portrayal of the Second Amendment as conferring a broad individual right is a monumental myth. It is a libertarian pipe dream. It is a constitutional deception designed to further a political agenda. It is an argument about what the Second Amendment should guarantee ¾ not a reflection of what it does guarantee in any legally meaningful sense.
2. Legislative Obstruction
It took seven years and the expenditure of an extraordinary amount of political capital to pass the Brady Bill's baby step of a national waiting period for handgun purchases. The successful 1994 battle to ban a [Page 111] modest set of assault weapons was nearly derailed by NRA lobbying, and faces far greater peril in the now-Republican-controlled Congress. As six former Attorneys General have written: "The nation can no longer afford to let the gun lobby's distortion of the Constitution cripple every reasonable attempt to implement an effective national policy toward guns and crime."
The President of the American Bar Association recently told reporters that the myth of a Second Amendment "fire wall" against "rational gun regulation . . . is so deeply rooted that as our staff have called in support of gun legislation we even had more than one congressman, who is inclined to support greater regulation, comment that he just had a problem with going against the Second Amendment." The gun lobby has been raising the Second Amendment's supposedly red flag at every piece of gun control legislation for at least thirty years.
Weary of the gun lobby's constitutional distortion, Representative Major Owens (D-N.Y.) has gone so far as to author a repealer of the Second Amendment. Representative Owens said that he introduced the proposed repeal
because the second amendment has been distorted and is often misquoted to mislead the American people to believe that because the second amendment exists we should not and we cannot regulate the manufacture, the sale, and the distribution of guns in the United [Page 112] States. As a result of the notion being promulgated that we cannot regulate the sale and distribution and manufacture of guns, we have a paralysis by legislators across the country and by the Congress. . . . Polls have clearly shown that 75 to 85 percent of the people want some form of gun control, but we do not have gun control, except to a very limited extent, because a small group of intense gun fanatics have perverted the democratic process through threats and intimidation of any public figure who dares to speak for and vote for what the overwhelming majority of the people want.
Representative Owens's proposal is essentially a facetious one, born out of his frustration with the gun lobby's Second Amendment misrepresentation. But repealing the Second Amendment is a red herring that pro-gun scholars have adopted. Ostensible gun control proponents have repeated the need for such action. The notion is as constitutionally unnecessary as it is politically infeasible. In large part because of the gun lobby's constitutional smokescreen, the aggressive measures that would logically save lives are not even on the agenda.
3. Perpetuating Conditions of Violence
The constitutional barrier constructed by the gun lobby, the marketing of guns and their images, and the doctrinal inflexibility of firearms fundamentalism have been significant factors contributing to America's unparalleled level of gun violence. Although he perhaps inadvertently repeated the gun lobby's misleading rights incantation in doing so, President Clinton hit the nail on the head when he suggested that the country is fixated on the right to bear arms ¾ so fixated that we are unable to think about the reality of life that millions of Americans face on unsafe streets, under conditions that no other nation has permitted to exist.[Page 113] As the Chicago Tribune has editorialized: "By affording extraordinary legal and political protection to guns, this country suffers homicide and weapon-injury rates that far exceed those of other industrialized nations. Young American men face odds of being murdered that are 4 to 36 times higher than those in other developed countries."
In erecting a bogus constitutional barricade against all gun control efforts, by insisting on unrestrained access to all firearms for all "law-abiding" Americans, the NRA has aided and abetted our national bloodletting. The gun lobby has perpetuated societal conditions that have seen more Americans die during the past twenty-five years in gun-related murders than were killed in the Vietnam War, the Korean War, and World War I combined.
Despite these obvious social costs, many Americans seem to believe the gun lobby's proffered notion that the "right" to bear arms acts as a trump against any gun control legislation, even if that legislation might benefit the common good by saving lives, reducing the national toll of death and dismemberment, and reducing firearm-related health costs. But there is no trump card in the deck. The collective national decision to maintain easy access to virtually unlimited quantities of high-powered firearms is, in reality, a simple cost-benefit analysis.
The gun lobby's moral culpability stems from its roles as preacher of false Second Amendment gospel, as commercial partner and promoter for an industry that sells products designed to kill, and as the strident political defender of a legal system that permits virtually unrestrained access to unlimited quantities of the most dangerous means of destruction. These roles have combined to produce a toll of over 35,000 killed every year and hundreds of thousands more raped, robbed, and assaulted in firearms-related violence.
C. The Evil That Gun Men Do
Aside from its cheerleading for a firearms industry that often caters to [Page 114] criminals and others bent on using their weapons to kill or damage fellow human beings, the gun lobby's legislative strategy has directly created an unregulated market in which "criminals, terrorists, fanatics and unstable people" can arm themselves. Lee Harvey Oswald purchased the rifle used in the assassination of President Kennedy through an advertisement in the back of the NRA's American Rifleman. Eric Houston wore his NRA cap as he killed four and wounded ten during a bloody rampage and eight-hour standoff in his old high school in Yuba County, California. Some gun-rights activists have, in a patriotic frenzy, resorted to threats and actual violence against opponents and perceived traitors.[Page 115] Paul Walling's threat to shoot President Clinton and Attorney General Reno "for what they have done to the American people by trying to take guns away from them" is only one example of the violence that gun-rights extremists have threatened or carried out. Francisco Martin Duran's 20 to 30 rounds that raked the White House are only the ultimate symbol of the gun activists' rabid hatred for the gun-grabbing feds. 
One insidious byproduct of this ultra-alienated mentality is a lingering scent of racism in the gun lobby's ranks. That aroma is detectable in the implicit cost-benefit analysis of the gun lobby's opposition to "assault weapon" bans: The pleasure of more efficient or pleasurable hunting and target competition weapons is seen to outweigh the hundreds of lives (mostly of persons of color in the inner city) lost to semiautomatic gunfire. The aroma reaches it rankest levels when NRA leaders display apparent indifference to the death and suffering of "others" of color. Consider this letter from Paul Blackman, the NRA's Research Coordinator, explaining away the extraordinary level of gun violence in our cities:
With a gun-related homicide rate of 144 per 100,000 population for [Page 116] inner-city black male teenagers ¾ compared with 21.5 for whites, which Federal Bureau of Investigation Supplementary Homicide Reports would suggest means about 10 to 12 for non-Hispanic whites ¾ the problem affects those already unlawfully acquiring and using guns.
This ostensibly sterile statistical analysis of "the problem" not-so-subtly reveals the gun lobby's racist assumptions: that (1) all, or at least most, nonwhite children and teenagers who die are criminals ("those already unlawfully acquiring and using guns"); and (2) we should discount this "cost" to society because the lives of these children of color are apparently worthless, or, at best, worth less. These assumptions are morally reprehensible in their chilly dismissal of the deaths of "bad" kids who get caught up in the lucrative drug trade. These assumptions are factually inaccurate, because they turn a blind eye to the hundreds of utterly innocent children of color slain and injured each year by "random gunfire."
The NRA is an overwhelmingly white organization, and one wonders how much to make of the radically divergent demographics between NRA membership and victims of gun violence. In the wake of the Los Angeles riots, the NRA sought to exploit racial fears by placing inflammatory ads in magazines with primarily white readerships, ads featuring color photos of black rioters. The NRA has also spent millions on "CrimeStrike" ads, to spread a recently emphasized get-tough-on-crime [Page 117] message. American Rifleman carries a regular ad for German war paraphernalia. More extremist gun-movement publications contain classified advertisements for "Nazi, Klan, S.S., Confederate & Pro-Gun" memorabilia, "Dolf Hitler" and Eva Braun teddy bears, and Hitler 100th anniversary beer steins. The gun lobby's racism born of alienation is just another form of the fear employed to rally the faithful, to stir political activism, and to sell the product.
III. DERELICTION OF DIALOGIC RESPONSIBILITY
At the signing of the long-embattled Brady Bill in November of 1993, President Clinton stated that "a part of the life of millions of Americans . . . [has been turned] into an instrument of maintaining madness." That madness is our gun-saturated culture in which one American is murdered with a firearm every thirty minutes. A parallel madness, to which the President himself contributed, is the collective false consciousness surrounding the alleged "right to bear arms."
Thus even as the President cheered our first step towards reducing the insane levels of gun-related death and injury in our society, he reinforced the delusion surrounding the Second Amendment. Standing tall in the bully pulpit, flush with all the communicative power and responsibility as the nation's leader, the President came up short. As he and other elected officials have done so frequently in the past, Bill Clinton failed in his duty to articulate an accurate constitutional vision of the Second Amendment.
The President was not alone in his dereliction of duty. The New York Times simply paraphrased the President's reference to the mythical right to bear arms without further comment. The print and electronic media fell short of their journalistic responsibilities to report the facts about the right to bear arms fully and accurately, and failed to contribute to an informed citizenry, as they so often have.
Members of the legal academy failed as well. Faced with prominent [Page 118] public reference to a phantom constitutional guarantee, not one legal scholar raised a reported objection to the President's misstatement regarding the supposed "right" to buy a handgun. This is hardly an isolated oversight. Despite their professional obligation and opportunity to communicate, law professors as a group have shown virtually no inclination to counter the constitutional false consciousness on this issue of vital public concern.
Political leaders, members of the media, and legal scholars all have a professional duty to contribute actively and accurately to the community's dialogue on matters of public concern. This dialogic responsibility is inherent in the American political scheme of representative and participatory democracy, and is reflected in the codes of professional ethics for journalists and law professors. The expertise, respect, and influence these groups have, as well as the effective means of mass communication available to them, are the primary sources of this dialogic responsibility. This responsibility also stems from the needs of the audience ¾ the electorate, the reading and viewing public, and the nonlawyers who receive a great deal of the raw information required to formulate an "informed" opinion from their political leaders, journalists, and legal priests and priestesses.
All three groups have remained strangely silent. When they have spoken at all, they have generally echoed the gun lobby's chorus concerning "the right to bear arms," without mentioning the judicial consensus rejecting that expansive view. Although it is perfectly natural and acceptable for pro-gun-rights elected officials, media commentators, and scholars to argue that the Second Amendment should be read to protect all private firearms ownership, a dereliction of dialogic responsibility occurs when they when they claim that the Second Amendment does provide broad constitutional cover for gun owners. As Part I argued, this is simply a misstatement of the Second Amendment's operative meaning. By ignoring the settled case law that adopts a narrow view of the Second Amendment, politicians, journalists, and legal academics have misled the public and marginalized the judiciary's essential task of constitutional interpretation. After all, "[l]egal precedents matter. Or they should. On an issue as publicized as this one, they become much less significant when so few people know that they exist."[Page 119]
A. Political Leaders
1. Political Leaders' Dialogic Responsibility
Politics must be a dialogue if it is to reflect the underlying participatory values of our representative democracy. Honest communication with the electorate and collective deliberation regarding major issues are necessary components of the American political system. Open dialogue ensures citizens sufficient information to make intelligent contributions to the political debate, whether direct ( e.g., contacting representatives, responding to public opinion surveys, participating in public meetings and talk radio shows, or writing letters to newspaper and magazine editors) or indirect ( e.g., donating time and money to political campaigns and advocacy groups, or voting itself). At a minimum, honest and thorough communication from elected leaders to their constituents is required to facilitate informed decisions in the voting booth ¾ the moment when the electorate (or at least some portion of it) engages in the lowest common denominator of participatory politics.
As the popularly chosen "voice of the people" and wielders of significant power to chart the nation's course, congresspersons and the President bear primary responsibility for establishing the agenda for our national dialogue on matters of public concern. With both ample staff [Page 120] support and wide media access, elected national officials have the opportunity to comment intelligently on most issues, and the communicative power to guarantee that those comments will be heard and read. As Mary Ann Glendon has argued, "[L]egislators need to be more conscious of the radiating pedagogical effects of their activities in a law-saturated society."
Delimiting viable political options often requires constitutional contemplation. As our nation's lawmakers, members of Congress have a special duty to consider the constitutional implications of proposed and potential legislation, and to communicate their views of those implications to their constituents, who must ultimately evaluate whether representatives' choices are appropriate.
When faced with a troubling issue in which the range of potential legislative solutions has been challenged on constitutional grounds, legislators have a duty to determine proactively the range of constitutional options for dealing with that issue. Because the Constitution both serves as our civic scripture  and provides the lines within which executive and legislative branch officials must paint, our representatives have a professional responsibility to address publicly constitutional claims that seek to rule out contemplated reforms.
Of course, self-preservation (rather than statesmanship) is often the name of the political game. Reelection-oriented politicians are often reluctant to take clear stands on proposals controversial enough to merit constitutional reflection. But as Stephen Macedo warns, "fully public justifications on controversial issues . . . will often be impossible to come by ¾ we must reconcile ourselves to that. While it may fail to achieve a construction that all reasonable people can agree upon, public reflection can help us identify and rule out unreasonable options."  Public reflection by our elected representatives can also help us understand and identify the scope of all reasonable constitutional options.[Page 121]
2. Political Leaders' Dereliction of Dialogic Responsibility
Unfortunately, the federal legislative branch has tended to avoid deep thinking about or careful articulation of constitutional issues. This unfortunate tendency, which the Constitution does not contemplate, has contributed to the electorate's ignorance about constitutional questions. Paul Brest notes that "because our representative institutions do not systematically address constitutional issues and because citizens have no occasions to participate in constitutional decisionmaking, popular talk about constitutional issues is often ill-informed and poorly reasoned." Similarly, Mary Ann Glendon worries that the "greatest obstacle to political renewal under present circumstances may not be an [inert people] so much as the failure of persons in positions of leadership to provide models by personal example and to work actively to create opportunities for discussion.
The dysfunctional gun control discourse is a sad paradigm of this cycle of ignorance. Our national elected officials have failed to facilitate any intelligent conversation regarding the Second Amendment. Rather than clarifying matters, the vast majority of our national legislators have either remained silent on the issue or perpetuated the constitutional false consciousness. Collectively and individually they repeat the empty refrain about the "right to bear arms" and claim that the Second Amendment [Page 122] prevents them from adopting a wide array of measures to address gun violence. Institutional pronouncements typify this. For example, the Firearms Owners' Protection Act of 1986 began with the precatory statement that "[t]he Congress finds that . . . the rights of citizens . . . to keep and bear arms under the second amendment to the United States Constitution . . . require additional legislation to correct existing firearms statutes and enforcement policies." A 1982 report of the Senate Judiciary Committee's Subcommittee on the Constitution went even further. Under the chairmanship of ardent gun-rights proponent Orrin Hatch, the subcommittee issued a one-sided, misleading document officially adopting the gun-lobby- approved view of the Second Amendment. The report included a strident preface by Senator Hatch, contending that the right to bear arms is the "right most valued by free men." The report's exceedingly disingenuous "Case Law" appendix began by offering a strictly gun-rights slant on the few Supreme Court cases construing the Second Amendment, then proceeded with summaries of twenty-one gun-lobby-preferred nineteenth- and twentieth-century cases ¾ all from state courts. No lower federal court cases were noted. Nor did the report acknowledge the consensus throughout the circuits, or the lower courts' consistently narrow reading of Miller. If the report has the feel of having been written by the gun lobby, that is because it effectively was: The authors included two prominent gun- rights advocates ¾ Stephen Halbrook and David Hardy.[Page 123]
Individual legislators have offered innumerable inaccuracies, ranging from labeling the Brady Bill a "bullet hole in the Second Amendment" to asserting a constitutional right to hunt with a firearm. But invocation of the supposed Second Amendment "right" to bear arms for all private purposes has not only come from the lips of traditionally pro-gun legislators, but also from some pro-gun-control corners. During a 1990 ABC program on the gun control issue, long-time NRA opponent Senator Howard Metzenbaum assured one woman that he would "protect [her] right" to continue using guns in sporting competitions. Even a new arrival to Washington, pro-gun-control Senator Patty Murray, also refers uncritically to the constitutional right to own guns. That gun control advocates fall into the trap of asserting that they do not seek to undermine anyone's "right" to possess firearms highlights the scope of our constitutional false consciousness.
Our legislators are not the only political leaders who have failed to challenge the gun lobby's constitutional deception. President Clinton, though a supporter of enhanced gun control measures and "a gun owner's worst nightmare" (according to the NRA) is the latest in a line of White House residents who have endorsed or referred uncritically to the [Page 124] "right to bear arms." In addition to his misstatements at the Brady Bill signing, Clinton has made a number of other reported references to the "right to bear arms." Although the President is probably not endorsing the gun lobby's constitutional claims, he has made no reported mention of the case law confining that "right" to the narrowest of circumstances.
Why are presidents and the vast majority of legislators unable or unwilling to challenge the erroneous conventional wisdom regarding the [Page 125] Second Amendment? It may be a matter of political calculation. Setting the record straight on the Second Amendment probably offers little payoff at election time. In addition, the thought of directly challenging the gun lobby's central credo surely strikes fear in the hearts of many politicians already leery of the gun lobby's well-documented penchant for vicious retaliation. Finally, the reluctance might be attributable to the very false consciousness that continued silence creates and reinforces. Presidents too are environmentally and emotionally preconditioned to accept the constitutional false consciousness propounded by the gun lobby.
To his credit, President Clinton has promised to veto any attempted repeal of the 1994 ban on assault weapons. But he fails to foster a wider debate or promote understanding of the gun lobby's bedrock constitutional claims. Although "[t]here may be good political reasons, in some circumstances, for coyness or even deception about what hangs on the resolution of a highly charged controversy," the tendency to avoid conflict on vital issues in order to avoid potential political damage is disheartening and dishonest. And disabling. The presidential and legislative reluctance to explain that constitutional rights are not at stake in the gun control debate disables the public's ability to understand and evaluate its government's handling of this vital political question.
B. The Media
1. The Media's Dialogic Responsibility
The Fourth Estate's primary responsibility is to serve the entire community by disseminating accurate information that enables the reading, viewing, and listening audience to make informed judgments on issues of public concern. For at least three decades, the central principle underlying the First Amendment has been the support of an "uninhibited, robust, [Page 126] and wide-open" interchange of news and opinions on public issues. The press is essential to this because "[w]ith the remoteness of most governments, state or federal, the press is the only continuous and reliable means by which people are informed about governmental actions and policies as well as possible alternatives." The ability of the press effectively to explain existing policies and viable alternatives "determines not only the level of citizens' understanding of what their government is doing, but ultimately their ability to participate in the decision-making processes open to them." In addition, political leaders also rely on the press to provide them with information and analysis vital to their official duties.
Journalists are expected to uphold a specific professional duty to provide correct and comprehensive information about the issues of the day. The Code of Ethics of the Society of Professional Journalists proclaims that "[t]he public's right to know of events of public importance and interest is the overriding mission of the mass media. The purpose of distributing news and enlightened opinion is to serve the general welfare." To meet that mandate, the media must report information not just accurately piece-by-piece, but completely. The journalist's Code of Ethics insists that "truth" is the media's ultimate goal and admonishes reporters that "[t]here is no excuse for inaccuracies or lack of [Page 127] thoroughness."
In an age of too much information and too little time, citizens rely on the media to provide them with the raw material required for informed political participation. As Justice Powell once wrote:
An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press therefore acts as agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government.
Justice Powell was certainly correct that the print and electronic media are the means by which most citizens receive the bulk of the raw materials they need to inform their opinions on issues of the day. America is home to 1556 daily and 7437 weekly newspapers, as well as 1519 television and 1697 radio broadcast outlets ¾ information sources that reach into virtually every home in the nation and are a dominating influence on public opinion. This power of delivery underscores the media's weighty dialogic responsibility to "educat[e] the public" and to enable citizens [Page 128] to participate in informed political debate and decisionmaking. This power of delivery gives the media a significant role in setting the public agenda: "[W]hile it is not possible for the media to tell the population what to think, they do tell the public what to think about."
2. The Media's Dereliction of Dialogic Responsibility
Former Senator Robert Kasten once lauded the First Amendment's protection of a free press because "[t]he free flow of information ensures that our citizens are fully informed about the issues of the day . . . and it ensures that misrepresentation can be uncovered in the give and take of full and robust debate." Members of the electronic and print media have, however, generally failed to perform these tasks when reporting on the constitutionality of gun control proposals. Although the NRA may well be correct when it frequently complains that the media tends to portray the gun lobby in a negative light, the major media's discussions of the Second Amendment typically adopt the NRA's interpretation uncritically. The ability of the press to educate the public and demand a full and fair accounting of public officials depends upon "the depth to which [the press] probes, the clarity with which it describes, the logic and analysis upon which it insists, and the fairness and objectivity of its review." The media's shallow firearms-policy stories, however, almost inevitably refer to the supposed clash between the gun control proposal du jour and the Second Amendment's hallowed "right" to bear arms.
It is even harder to find any press discussion of the narrow judicial interpretation of the Second Amendment. Reporters fall into the same trap as most politicians, describing the Second Amendment as consisting of a broad- sounding but undefined "right" apparently cherished by and guaranteed to all good Americans. Media analyst Ben Bagdikian observes that the press is "[f]ar more effective in creating public opinion . . . [i]n the pursuit of events or ideas until they are displayed in depth [Page 129] over a period of time, until they form a coherent picture and become integrated into public thinking." It seems only natural that the audience would adopt an erroneously expansive view after years of reading and hearing one story after another referring blindly to the Second Amendment's "right to bear arms."
A review of the newspaper, magazine, television, and radio transcripts contained on the LEXIS News Library reveals a pattern of inaccurate and misleading references to the constitutional concept of the "right to bear arms." In seventy-six percent of the stories, the media offered unqualified references to the "right to bear arms" or explicit endorsements of the notion of a broad individual right to bear arms. Sometimes the misstatement comes in the form of a reporter's direct assertion that the Second Amendment guarantees "the right to bear arms," as in the following examples from the San Francisco Chronicle and St. Petersburg Times, respectively:
Although the right to bear arms is protected by the Constitution and is felt at a primal level by many who own pistols and shotguns, Americans continue to voice overwhelming support for congressional action on gun control legislation, a new Gallup Poll has found.
I'm tempted, even on Independence Day, to say let's just ban handguns. For every article I read about some law-abiding person effectively defending himself with a gun, I must see 15 about senseless murders. Killings by tempestuous people who might have been content to pummel their victims, except for a gun. Pulling the trigger was so quick and easy. And so irreversible. But gun possession is protected by the Constitution.[Page 130]
Television journalists are often guilty of similar inadequate reporting, as evidenced by these excerpts from ABC's World News Sunday and Nightline:
[M]ore radical measures have been suggested ¾ registration of all firearms, even repeal of the constitution's second amendment, the right to bear arms.
In 1993, religious arguments are becoming not only more and more political, they're becoming more and more violent, making some people wonder if not just the Second Amendment but First Amendment protections may have become too dangerous to sustain. Others, of course, insist that crimping those protections in any way could be the most dangerous political cut of all.[Page 131]
Sometimes the inaccurate impression comes not from a reporter's direct assertion, but from a gun-rights activist's deceptive claim that remains unchallenged. For instance, the Gannett News Service picked up this item regarding the NRA's 1993 convention: "For the benefit of NRA stalwarts [Rush] Limbaugh declared his love for the Second Amendment, which guarantees the right to bear arms." Gannett did nothing wrong by reporting a speech in which Limbaugh claimed that the Second Amendment protects a broad right to bear arms for all law-abiding citizens. The wire story is nevertheless inaccurate, and perpetuates false consciousness, because it does not explain that Limbaugh and the NRA merely asserted this interpretation, and that courts have rejected that view. Though the variation may seem subtle, it makes all the difference whether one reports an asserted description of constitutional meaning or instead recounts that description as if it were valid.
Quite frequently, a newspaper merely fails to describe the Second Amendment's judicial landscape, even when the story in question cries out for some sort of case-law summary. For instance, in 1994 the New York Times ran a story about Florida panhandle communities that were establishing citizen-wide militias as a means of circumventing any national gun control. The reporter never noted the judiciary's focus on precisely such militia-membership as the sine qua non of Second Amendment protection.
And the press goes even beyond mere omission. "Tests" designed to increase constitutional comprehension affirmatively offer vague and inaccurate descriptions of the Second Amendment. For instance, a Newsday quiz for student readers recently inquired:
If you were a founding father or mother meeting today, would you vote for or against the Second Amendment's right to bear arms?
United Press International once offered its subscribers a constitutional test for adults, which posed the following unedifying question and answer:
[Q:] What amendment guarantees the "right of the people to keep and bear arms"?[Page 132]
[A:] The 2nd Amendment.
These tests continue to omit relevant information regarding judicial views of the Second Amendment, but then add the element of teaching ¾ the media taking upon itself the task of educating. Sadly, a purported lesson merely exacerbates the reader's misinformation and confusion.
Why has the media failed so miserably to provide an accurate and sufficiently thorough Second Amendment narrative? Several plausible reasons come quickly to mind. The first explanation might see nothing more than a combination of space limitations for, and laziness by, reporters and editors. It takes fewer column inches or air time to tell, and less effort to research and write, a story that simply repeats the pat phrases seen in every other gun control story.
A second reason might be traced to the bottom-line thinking that has infected much of the media with "tabloid fever" in recent years. Eager to sell papers and to maintain viewers and listeners for their loyal advertisers, media outlets increasingly focus their attention on the heat and not the light of any given story. Third, the unquestioning regurgitation of the gun lobby's "right to bear arms" mantra may reflect many journalists' inclination to protect individual liberties of all kinds: even the illusory ones. An unspoken and perhaps subconscious fear of some in the media may well be: "If they go after the Second Amendment, the First Amendment is next on the list." Finally, the problem may simply be ignorance of the relevant case law.
None of these reasons can excuse the media's informative inadequacy. Draped in First Amendment protections whose primary purpose is to [Page 133] protect and promote "an unfettered interchange of ideas for the bringing about of political and social changes," the media has instead contributed to decades of political near-paralysis by uncritically reciting the same old Second Amendment song.
C. Legal Scholars
1. Legal Scholars' Dialogic Responsibility
Like the media, scholars of all varieties serve an important "informative function" in our political system. The First Amendment's protection for academic freedom saves scholars from "laws that cast a pall of orthodoxy over the classroom," but it also imposes First Amendment responsibility to take part in the national colloquy on issues within the scholars' areas of expertise. Scholars have this dialogic responsibility in part because they hold a position that allows them to develop their expertise, in part because society accords them a special respect and status, and in part because professors ¾ like politicians ¾ can get their names and notions in the papers and on television. Compared to the average citizen, scholars have relatively easy access to the means of mass communication.[Page 134]
The scholar's typical tripartite duties of teaching, scholarship, and community service suggest an ethical responsibility to "refine, extend, and transmit knowledge" not only within the classroom, but to the rest of the community, a professional duty recognized by the American Association of Law Schools ("AALS"). Despite a frequently insular character, the greatest values of legal scholarship are those offered to the greater community: solving or at least addressing the "myriad problems of the world," and contributing to the development of an electorate well informed of those problems. Given the professional opportunity to acquire and transmit specialized knowledge, law professors bear some responsibility for providing the people and political leaders with both accurate information and carefully considered opinion regarding the legal issues affecting vital concerns of the day.
Legal scholars have a particularly vital informative role to play in a nation in which the line between law and politics is exceedingly thin, and that has constitutionally drawn limits for feasible legislation. Knowledge of the law, and constitutional law in particular, is perhaps the most valuable coin of the political realm. As Sanford Levinson has noted, "Constitutional law provides a public vocabulary absolutely essential to [Page 135] understanding the nature of political discourse within our society." Legal scholars must bring their learned and often respected voices to bear on the political dialogue ¾ and to the people ¾ honestly explaining the constitutional parameters surrounding politically controversial issues. Our secret constitutional decoder rings give legal scholars special powers ¾ and responsibilities ¾ to upgrade the quality of dialogue in many political debates.
The insistence that scholars speak the "truth" is admittedly problematic, given the rampant relativism of our post-modern world and the marginal respect that the legal system's truth-manipulating professional ethic accords to any remotely objective sense of "truth." Nonetheless, speaking the truth is an ethical and professional responsibility shared by all legal scholars. The relevant AALS ethical statement for law professors insists that the "scholar's commitment to truth requires intellectual honesty and open-mindedness." Anthony Kronman writes that "every scholarly endeavor, no matter what its subject, aims to state something true regardless of how far short of this goal it actually falls . . . . The end of scholarship is the discovery of truth and the promotion [Page 136] of knowledge."
The ultimate conversational obligation of the scholar is not just to speak, but in the words of Hans Morgenthau, to benefit society by "speaking truth to power." The intellectual has four ways of dealing with power, according to Morgenthau: "by retreat into the ivory tower, which makes him irrelevant; by offering expert advice, which makes him a servant; by absorption into the machinery, which makes him an agent and apologist; or by 'prophetic confrontation.'" This last, prophetic confrontation, requires intellectuals to "look at the political sphere from without, judging it by, and admonishing it in the name of the standards of truth accessible to [them]."
A central indicia of "truth" for any legal scholar is the body of case law surrounding any legal issue. "[T]he intellectual structure of the American legal scholar is in large part derived from what is being done and/or needs to be done by the judiciary. The judiciary is the main source of raw data and hypotheses for legal scholars." Although cases are hardly conclusive as to how a statutory or constitutional clause should be interpreted, as legal scholars we are ethically obligated to at least acknowledge relevant case law, however much we may disagree with it. Legal precedents ¾ particularly unwavering legal precedents ¾ do matter, regardless of how often we tell our students that "the court got it wrong" (again). Even if the goal is to criticize the status quo interpretation, revelation of that consistent judicial reading is an important aspect of the scholar's dialogic responsibility.
Legal scholars have done perhaps the poorest instructional job of all three groups taken to task here. Like so many things in law school, the dialogic failure on the Second Amendment has three prongs: (1) the complete failure of law professors to speak up on the issue; (2) the failure of those few who have addressed the issue to discuss a central aspect of the legal "truth" about the Second Amendment ¾ that the courts constantly reject the gun lobby's broad- individual-right position; and (3) the even greater failure to reach beyond the insular world of the legal academy and speak to the people and to political leaders.[Page 137]
2. Legal Scholars' Dereliction of Responsibility ¾ Failure to Speak
As Sanford Levinson has said: "To put it mildly, the Second Amendment is not at the forefront of constitutional discussion." Members of the legal academy all but ignore the Second Amendment. Anecdotal information suggests that it is rarely discussed in class. It is virtually invisible in the leading constitutional law texts, making only passing appearances in the leading casebooks.
The Second Amendment has only a slightly higher profile within the pages of the nearly 650 law reviews and journals listed in the Index of Legal Periodicals. At the beginning of the 1993-94 academic year, the AALS-member law schools employed 1368 self-described constitutional law professors. Of that group, only nine have ever written a law review article focusing on the Second Amendment. Between January 1973 and June 1994, law reviews published only fifty-seven articles with a significant Second Amendment focus, according to the [Page 138] ILP. Of those fifty-seven articles, leading gun-rights litigators and lobbyists produced at least twenty-six, or nearly half.  Not content to rely solely on its own lawyers and activists, the gun lobby is also working hard to flood the law reviews with friendly scholarship from sympathetic law professors and promising law students. Full-time law professors penned only ten articles focusing on the Second Amendment.
Why is the Second Amendment a topic so rarely broached by legal scholars? Levinson theorizes that the Second Amendment's absence from serious scholarly discussion stems from opposition to private gun ownership and a concern that "altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles" to firearms restrictions. I find this explanation unpersuasive. No survey suggests, and I strongly doubt, that the majority of legal scholars are so anti-gun as to oppose all firearm ownership by private citizens (though many may support some form of gun control).[Page 139]
Some have suggested that the Second Amendment silence is due to the very point made in Part I: The lower courts have clearly rejected the broad- individual-right view, and the issue is dead until the Supreme Court finally chooses squarely to address this settled area of constitutional law. Other scholars have indicated to me ¾ with little desire for attribution ¾ that they were never exposed to any serious discussion of the Second Amendment in law school, while clerking, or in practice. Such a tabula rasa is an unlikely foundation for successful scholarly efforts. Finally, there are a pair of explanations that strike me as ironically contradictory. On the one hand, the questions surrounding Second Amendment interpretation are not as intellectually tempting to most scholars as the consistently hot legal battlefields involving the First, Fourth, and Fourteenth Amendments, or any kind of Critical Race analysis. On the other hand, the stakes of the political battle, and the tone of the spitting match that passes for a debate on gun control, are as high and as heated as one could find. A hot battlefield that includes nonlawyers, with real political controversy and ugly cross-talk, may simply be too off-putting for the taste of many in the legal academy, quite a few of whom have intentionally eschewed the often confrontational stance of the practicing lawyer.
3. Legal Scholars' Dereliction of Responsibility ¾ Failure to Speak the Truth Among the handful of legal scholars who have tackled the Second Amendment, several have read the text and underlying history as establishing only a narrow individual right to bear arms. However, a number of scholars who have discussed the Second Amendment have endorsed the broad-individual-right interpretation. This Article contends that a careful reading of the text and legislative history does not support the latter view. The dereliction of dialogic responsibility is not a failure to toe some mythical party line opposing the Second Amendment. The real problem with these scholarly endorsements of the NRA's position is that they inexplicably ignore, or summarily dismiss, the judicial consensus rejecting the broad-individual- right position. The failure lies in refusing to mention the scope of the case law that confines the "right to bear arms" to only the narrowest of circumstances.
In his enormously influential essay, The Embarrassing Second Amendment, Sanford Levinson utterly ignores the vast case law arrayed against his favorable nod to the gun lobby's reading of the "right to bear arms." In this piece, Levinson proclaims that it is not his "style to offer [Page 140] 'correct' or 'incorrect' interpretations of the Constitution." Nonetheless, the essay manages to lend great credence to three significant interpretive "suggestions": (1) The broad-individual-right view may well be a "winning interpretation"; (2) the term "Militia" in the Second Amendment "refers to all of the people;" and (3) the Second Amendment preserves the right of the people to engage in armed rebellion against a despotic regime. In offering these helpful hints, Levinson provides a cursory overview of the Second Amendment text and surrounding history, relying on the usual secondary materials that the NRA finds so appealing, including The Federalist No. 46 and nineteenth-century constitutional commentary from Justice Joseph Story and Thomas Cooley. Like the gun lobby, Levinson strips these materials of important context, advancing the ball "by manipulating his supporting material so as to exclude that which would cast doubt on the existence of a broad individual right."
Focusing only on the Supreme Court, Levinson complains that "only one modern case . . . discusses the issue" and then proceeds to ignore the settled law in ten circuits, as well as the consistent decisions of dozens of federal and state courts rejecting the broad-individual-right view, the insurrectionist position, and a weapon-centric interpretation of Miller. Levinson instead lends credence to all of these positions. To be fair, his failure to discuss the broad judicial consensus running contrary to his position must be understood in light of his disdain for judicial opinions as significant factors in assessing constitutional meaning. But Levinson's claim in this essay, that he supports "prohibitory [firearms] regulation" is hard to swallow. He is a member of the anti-gun-control [Page 141] group, Academics for the Second Amendment, and has urged Democrats to abandon their long-time support for firearms restrictions. Levinson concludes his essay by urging greater "sensitivity to different or excluded voices" representing the NRA position. To describe the nearly inescapable drone of the NRA position on gun control as "excluded" is a bit silly.
William Van Alstyne's recent essay, The Second Amendment and the Personal Right to Arms, concludes that "the essential claim . . . advanced by the NRA with respect to the Second Amendment is extremely strong." He compares the so-called "arrested jurisprudence" of the Second Amendment to that of the First Amendment in 1904, and argues that the "underdeveloped nature" of the Second Amendment case law is "due substantially to the Supreme Court's own inertia." On the way to these pronouncements, Van Alstyne discusses only the scant Supreme Court case law, ignoring the many state and lower federal court decisions of the last fifty-five years. Van Alstyne offers the rather surprising statement that "the Second Amendment has [Page 142] generated almost no useful body of law." The settled case law, of ten circuit courts and several state supreme courts, is somehow not useful.
In The Second Amendment: Toward an Afro-Americanist Reconsideration, Robert J. Cottrol and Raymond T. Diamond discuss the meaning of the right to bear arms in light of our enduring national legacy of racism and the use of firearm regulation as a means to control underrepresented groups. These authors conclude that "a society with a dismal record of protecting [African- Americans] has a dubious claim on the right to disarm them." Most of Cottrol and Diamond's conclusions rely on standard gun-lobby materials, as they elaborate the long-standing NRA theme that "gun control is a white plot to disarm a feared minority population." Though there is indeed some historical merit to the argument, particularly in the Jim Crow era, the position makes little sense today in light of the tremendous and disproportionate toll that gun violence takes on the African-American community. As for judicial authority regarding the Second Amendment, the authors take only a short footnote, stating that some courts have dismissed Second Amendment claims "by employing the collective rights theory." Cottrol and Diamond's citation to only one of dozens of like-minded decisions seriously downplays the broad judicial dismissal of any broad individual right.
It should be added that Cottrol is one of the most active legal scholars in the Second Amendment area. He has written a number of articles for [Page 143] the popular press, both alone and with Diamond, and has edited a collection of essays on the Second Amendment. All of these materials display a similar disinclination to acknowledge fully judicial or scholarly views contrary to the gun lobby's party line. Most of the other legal scholars adopting the broad-individual-right view also fail to acknowledge the contrary judicial consensus.
Admittedly, Cottrol takes the laudable position that "[j]udicial hostility towards a constitutional right should not cause us to ignore the existence of that right." Judicial hostility to the gun lobby's expansive interpretation of the Second Amendment does not mean that a broad individual right to bear arms could not, or should not, exist. Nor does it mean that Cottrol, Diamond, or any other gun-rights advocate should refrain from arguing that the Second Amendment should be read broadly. But given the constant repetition of these pro-gun-lobby articles, with their recitation of the same source material, there appears to be little danger of any broad Second Amendment right being ignored. Instead it is the gun-rights scholars who have ignored what the courts have said ¾ omitting material in gross measure.
It requires an advanced case of Supreme Court-only tunnel vision to ignore more than five decades of consistent interpretation from the federal courts. Despite the Supreme Court's position "at the apex of one [Page 144] discourse" of "authoritative guidance," the High Court is not the only voice in the judicial conversation. Despite the Court's pronouncement that it is "the ultimate interpreter" of the Constitution, it is not the only constitutional interpreter. The Supreme Court offered a narrow, albeit confusing analysis in Miller. Every other federal court to consider the Second Amendment subsequent to the Miller decision has adopted a narrow militia-centric view of the right to bear arms. When scholars ignore that consistent case law, they perpetuate the ignorant state of our gun control discourse.
It may well be that one's scholarly views of the Second Amendment are determined primarily by one's political position on gun control (a charge to which I am open just as much as the pro-gun-rights academics). Of the nine full-time law professors who have offered endorsements of the broad-individual-right position via law review articles, seven are members of the anti-gun- control group Academics for the Second Amendment ("AFSA").
AFSA is headed by NRA Executive Board member Joseph Olson, a professor at Hamline University School of Law. The group was lauded in the December 1993 issue of the NRA's American Rifleman. AFSA proclaims that it seeks to "foster intellectually honest discourse" on the Second Amendment, and that its "primary goal is to give the 'right to keep and bear arms' enshrined in the Bill of Rights its proper, prominent [Page 145] place in Constitutional discourse and analysis." But in the group's paid political announcement and in the writings of its members, "intellectually honest discourse" includes steering a course far away from the judiciary's interpretation of the Second Amendment. The group's members have spread the gun lobby's gospel effectively. Their academic endorsements provide much appreciated scholarly seals of approval for the NRA, and perpetuate the popular false consciousness regarding the operative meaning, as rendered by the courts, of the Second Amendment.[Page 146]
4. Legal Scholars' Dereliction of Responsibility ¾ Failure to Speak Truth to Power
Speaking truth to power can often be controversial and frequently must be confrontational. As honesty is an all-too-rare commodity in politics, the scholar's obligation to speak truth to power will often require a forthright challenge of deception. "[I]t is the very essence of the [legal scholar's] job to consider rather concretely how public and private power should be exercised: to criticize as a scholar contemporary public figures and institutions, assuming a direct responsibility 'to improve the world' " by teaching lessons to those wielding power.
Very few law professors have cleared their throats, or their hard drives, to weigh in on gun control and the (supposed) restrictions of the Second Amendment. Even fewer have done so beyond the insular literary universe of the law review. Though the law review is the most familiar and (in terms of tenure) most important arena for legal academics, it is a hardly a public forum. The law review culture, with its "limited and specialized circulation" and its "closed and self-referential vocabularies," offers "little if any guidance with respect to framing popular arguments." Comfortable and nonthreatening as the Ivory Tower might be, legal academics have a social responsibility to venture forth to frame popular arguments.
But members of the legal academy tend to shy away from such public [Page 147] conflict. Out of choice or habit, most of us speak primarily within the closed conversational circle of the law school and law review. We often seem reluctant to play a role in contemporary politics. "Despite the normative trend so dominant in legal scholarship . . . scholars have thus far been noticeably 'reluctant to tie their sophisticated intellectual insights to the concrete problems' of constitutional adjudication, much less to popularly-oriented politics." A recent New York Times story discussed the "growing number of scholars who are trying to reach beyond the boundaries of academic life to speak to broader audiences on broader issues," and quoted some dozen academics on their intellectual outreach efforts. Not one was a professor of law.
Scholars have certainly been reluctant to offer many "sophisticated intellectual insights" to correct the public's constitutional false consciousness surrounding the Second Amendment. Reflecting the important role that legal scholarship should play in political discourse, Levinson told the National Law Journal in 1990 that his fellow academicians ought to take the Second Amendment more seriously, because "unlike other little-analyzed constitutional provisions . . . this amendment drives popular debate and influences political campaigns." More generally, Morgenthau argued that, if "it is taken seriously," scholarship relevant to such political conflict "shortens the interval necessary for the correction of unsound policies." But legal scholars have done little to correct our nation's unsound firearms policies; we have been all but irrelevant to the polity's debate over gun control. We have greeted the gun lobby's constitutional misinformation campaign with a roaring silence in the popular press. A search of the LEXIS News Library through the end of 1994 shows no more than sixteen occasions in which legal scholars made any comment on the Second Amendment available for publication or broadcast by the popular press.
If we have any regard for the significance of the judiciary's interpretive role in constitutional matters, legal scholars have a duty to speak up, to speak honestly, and to speak clearly to the public and their representa-[Page 148] tives, explaining the relevant case law and challenging the gun lobby's dishonest manipulation of constitutional meaning. "Legal scholars can point out the distortions, overstatements, strategies, hidden agendas, and the like of the various interest groups striving to dominate key parts of the legal system and legal doctrine." Even those who embrace the broad- individual-right view have the responsibility as scholars to acknowledge the contrary judicial consensus and to challenge the Second Amendment haze surrounding this most politically important of constitutional provisions. Permitting the public, the media, and our legislators to continue wallowing in the mud of constitutional confusion undermines the polity's ability fully to contemplate the costs and benefits of our current firearms policy. Permitting a misconception of the Second Amendment to thrive undermines the dialogic legitimacy of our political discourse, and allows the din of the gun lobby's well-orchestrated propaganda campaign to drown out the judiciary's voice.
Despite the general failure of politicians, journalists, and legal scholars to clarify publicly the current meaning of the Second Amendment and to explore the all-but-unlimited scope of viable gun control measures, the past few years have brought several hopeful developments. Political victories at the national and state levels have shown that sensible gun control measures can be enacted, even in places generally considered hostile to firearms restrictions, such as Virginia, Colorado, and the House Judiciary Committee. Citizen groups and individuals have stepped forward to organize efforts like guns-for-toys trades, community vigils, and [Page 149] marches against gun violence. Public health professionals have targeted firearms violence as a public health issue, and have begun to speak out about the costs of, and potential cures to, our national gun addiction. The ABA and several other legal organizations have formed groups dedicated to combating gun violence. The ABA also sponsored a "National Conference on Gun Violence" last June, bringing together many different types of organizations to generate an interdisciplinary focus to the gun control issue for the first time. Even a few legal scholars have raised their voices. Last year, twenty-seven law professors signed their names to a full-page national advertisement that outlined the consistently narrow judicial reading of the Second Amendment and reminded us of former Chief Justice Burger's labeling of the gun lobby's Second Amendment distortion as a "fraud on the American public."
Congress has adopted several small but meaningful gun control measures, including the Brady Handgun Violence Prevention Act and the [Page 150] assault-weapon ban of the 1994 crime bill. Though now at risk in a more gun-friendly Congress, these two laws are important and newsworthy symbolic victories, suggesting that the gun lobby's hammerlock on the Congress is starting to slip.
Still, the two laws offer relatively meager returns in light of extraordinary investments of political and financial capital. Their qualitatively inauspicious returns could ultimately prove more harmful than helpful to the gun control cause. A dramatic reduction in the number of lives lost and damaged by firearm homicides, assaults, accidents, and suicides can only be accomplished through legislation that is both comprehensive in scope and nationwide in application. Aggressive and comprehensive national firearms regulation will only come when the false conscious-[Page 151][Page 152] ness surrounding the Second Amendment is swept aside.
Guns as inanimate objects are not evil. But the widespread availability of so many highly lethal guns is, according to one learned diagnosis, a "cultural cancer." America's gun love is a disease, just as surely as drug and alcohol abuse are societal diseases. Because firearms are so important to a highly vocal faction within the body politic, so central to the credo of the rugged anti-government American individualist, and so close to the commercial heartbeat of America, it will be difficult for our national leaders to order the radical surgery so desperately needed to stem the tide of gun violence.
And it will be impossible to take the required radical steps unless our political leaders, journalists, and legal scholars challenge the gun lobby's constitutional charade. Whether based on complicity, cowardice, ignorance, or indifference, this collective failing effectively allowed the gun lobby to monopolize the discussion, and contributed to the consistent derailing of effective gun control measures. "Timidity and a too ready willingness to compromise can be as dangerous as intransigence and dogmatism, and it is not clear that divisiveness is now a greater danger than timidity . . . . We should pick our fights carefully but preserve our ability to recognize and fight the good fight." The fight for full disclosure in our gun control discourse is a good one. The struggle to save lives by dramatically reducing access to the most effective means of domestic destruction is as good a fight as there is to be found in today's political universe. Unfortunately, those with a responsibility to do so have not joined the one-sided constitutional conversation. We must challenge the constitutional false consciousness soon and undertake aggressive reform efforts while the iron is hot, taking advantage of the public's perception of a rising crime rate and the increased toll of gun violence, and while a [Page 153] sympathetic administration holds the White House. If we remain mute, if we permit recent gains to be rolled back by the new Congress, then we will continue to sacrifice more than one hundred men, women, and children every day on the altar of exaggerated firearms freedoms.
* Visiting Assistant Professor of Law, Touro College, Jacob D. Fuchsberg Law Center. J.D., Cornell Law School; B.A., University of Virginia. Carl Bogus, Louise Harmon, Berta Esperanza Hernandez, Beryl Jones, Holly Maguigan, Twila Perry, Deborah Waire Post, Dan Subotnik, and (especially) David C. Williams provided invaluable comments on earlier drafts. Mitch Berman, Mary Milone, Stacey Schwartz, John Smargiassi, and Daphna Zekaria came through with consistently excellent research assistance. This Article could never have happened if my wife, Maureen Padgett, were not a woman of supreme patience and tolerance. The Article is dedicated to Hank, and to everybody else's kids. None of them should have to grow up in the dark shadow of so many guns.
1. Adams v. Williams, 407 U.S 143, 150 -51 (1972) (Douglas, J., dissenting).
2. Preferences throughout to "the gun lobby" and "gun-rights advocates" apply not to individual gun owners or National Rifle Association ("NRA") members, but solely to gun-rights litigators and leaders of the NRA and other gun-rights organizations. Many gun owners do not share the extreme views of the NRA. "The hard-line views of the NRA are crafted not from the majority of gun-owners, or even its members, but from its leadership and an activist core of 600,000 members." JOSH SUGARMANN, NRA. MONEY, FIREPOWER AND FEAR 17 (1992). The overwhelming majority of gun owners are responsible, law-abiding men and women. They have many different reasons for wanting to own and use firearms:
Americans own guns for manifold reasons. Hunters . . . view their guns as a way to escape the 'stoplight-and-concrete-jungle.' Target shooters emphasize the calmness, the discipline, the self-control involved in shooting. Devotees of much reviled assault weapons are drawn to the technology and the brute impact of these weapons. Collectors see beauty and craftmanship . . . . The millions of Americans who keep guns for self-protection are buying talismans they hope will ward off a seeming epidemic of evil spirits . . . . Some gun owners see their weapons as foils against government tyranny.
Donald Baer et al., Guns, U.S. NEWS & WORLD REP., May 8, 1989, at 20, 22. This Article does not contend that these beliefs are necessarily erroneous, that gun owners are "gun nuts," or that gun owners are evil people for holding these views. The error is in the claim of a constitutional right to possess an unlimited number of highly lethal, rapid-firing, and unregulated firearms. The evil is in the insistence on virtually unrestricted access to all manners of firearms in order to satisfy personal desires, when that unrestricted access imposes on the rest of society an extraordinary toll in human suffering and health-care costs.
3. Bernard Levin, A Gun in Every Hand, THE TIMES (London), June 28, 1994, at 20. Offering its people far and away the easiest access to firearms of all industrialized western nations, the United States also boasts, by far, the highest murder rate per capita. The U.S. homicide rate is 8.4 per 100,000 population ¾ twice that of France and Germany, four times the rate in Great Britain, and seven times higher than Japan's figure. James C. Harrington, Texas, Especially, Needs Gun Control, TEX. LAW. , Nov. 4, 1991, at 10. Firearms were the weapon of choice in 70% of homicides in 1993. Robert Davis & Haya El Nasser, New Ammo for Gun Debate, USA Today , Dec. 28, 1994, at 1A. More than 500,000 Americans have died as the result of firearms injuries since 1960. JOSH SUGARMANN & KRISTEN RAND, CEASE FIRE: A COMPREHENSIVE STRATEGY TO REDUCE FIREARMS VIOLENCE 1 (1994). In 1993 the rate of firearms-related fatalities reached a 61-year high. Lidia Wasowicz, Guns Deadlier than Cars, UPI, Jan. 13, 1995, available in LEXIS, News Library, UPI File. The number of violent crimes committed with firearms increased by 55% from 1987 through 1992. Bureau of Justice Statistics, Violent Offenders Increasingly Likely to Be Armed, Feb. 26, 1994 (press release, on file with the Boston University Law Review), available in BJS World-Wide Web site. The rising tide of gun violence cuts across all regional and socioeconomic lines. Firearm homicides are increasing in urban, rural, and even suburban areas; with dramatic increases of 23 -28% between 1987 and 1989 in inner-city and suburban neighborhoods, and an 8% increase in rural areas. Philip J. Hilts, More Teenagers Being Slain by Guns, N.Y. TIMES , June 10, 1992, at A19 (citing a National Center for Health Statistics study).
4. Davis & El Nasser, supra note 3, at 1A. This figure, based on an estimate by the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), may be inflated. The exact number of firearms in circulation is difficult to determine. SUGARMANN & RAND, supra note 3, at 17-18. The ATF estimates that 7.5 million new and used guns are sold at retail each year. Assuming gun merchants are open for business seven days per week, that figure translates to nearly 20,000 sales a day. Id. at 18.
5. Tony Mauro, Guns: Changing Our Lives, USA TODAY , Dec. 29, 1993, at 1A, 2A. Handguns are designed to be fired with only one hand, as opposed to long guns (or rifles), which are designed to be fired from the shoulder. Handguns generally are less than 18 inches, while ATF standards require that rifles have a barrel length of no less than 16 inches, and shotguns at least 18 inches. There are two types of handguns ¾ revolvers and pistols. Revolvers hold their ammunition in a round cylinder. Pistols, actually semiautomatic handguns, hold between 14 and 17 cartridges in a magazine, generally located in the weapon's handle. Each time the weapon is fired, a new cartridge is loaded into the chamber. See generally MICHAEL NEWTON, ARMED AND DANGEROUS: A WRITER'S GUIDE TO WEAPONS (1990) (providing the technical specifications of common firearms).
Handgun crimes shot to a record of nearly 1 million in 1992. Handguns were used in 930,700 homicides, rapes, robberies, and assaults; an enormous increase of 40% from the 1987-91 annual average. Handgun murders increased by 24.5% ¾ to 13,200 ¾ from that five-year average. Wielded in 56% of the 23,670 murders nationwide, handguns were the overwhelming weapon of choice for killers. Debbie Howlett, Handgun Crimes Hit Record, USA Today , May 16, 1994, at A1.
Many foreign countries have fewer handgun murders in an entire year than the United States sees in a single day. In 1992, handguns were used to murder:
¾ 33 people in Great Britain
¾ 36 in Sweden
¾ 97 in Switzerland
¾ 60 in Japan
¾ 13 in Australia
¾ 128 in Canada,
and 13,220 in the United States of America.
Levin, supra note 3, at 20.
6. Mary Otto, Guns Poised to Pass Autos as No. 1 Killer, ARIZ. REPUB., Jan. 28, 1994, at A1. The six states are California, Louisiana, Nevada, New York, Texas, and Virginia, as well as the District of Columbia. Id. One recent study shows that gun fatalities were on a par with auto deaths in 1993, and almost surely pulled ahead in 1994. Wasowicz, supra note 3. Gun-related fatalities rose 60% nationwide from 1968 to 1991. Auto-related deaths declined by 21% during that same time. Id.
7. Though death and injury by random gunfire has been reported in cities of all sizes, stray bullets are a particular problem in large cities. Random gunfire killed four New Yorkers in 1985, and 40 in 1990. Wasowicz, supra note 3. In January of 1993, random gunfire struck 31 New York City children. The dead include youths involved in the drug trade, kids exchanging gunfire as a means of settling disputes, kids playing with guns, and completely innocent kids hit by stray bullets. George James, Rifle Gunfire Wounds a 2-Year Old Girl on a Street in the Bronx, N.Y. TIMES , Feb. 1, 1993, at B3. As we near the end of the millennium, this stray gunfire has apparently become accepted as just another unpleasant but inescapable part of the urban landscape, not unlike graffiti or traffic jams. See, e.g., News at Ten (WPIX-11 television broadcast, Nov. 7, 1993) (describing stray bullets that struck a New York City fireman as one of the "elements" of life "out here on the street").
8. B. Drummond Ayres, Jr., Children Frightened by Gunfire Plead with Congress for an End to Violence, N.Y. TIMES , Feb. 4, 1994, at A12. Firearm death rates among 15 -19 year-olds increased by 77% from 1985 to 1990, reaching a record level of 23.5 deaths per 100,000 persons. Since 1988, gunshot wounds have killed more teens in that age group than natural causes, trailing only traffic accidents as the leading cause of death. SUGARMANN & RAND, supra note 3, at 1 (citing FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS: CRIME IN THE UNITED STATES 1991 , at 17 (1992)). According to the Centers for Disease Control, the youth homicide rate nearly doubled between 1984 and 1991, and the increase was almost entirely due to firearm deaths. Bo Emerson, A Deadly Epidemic, ATLANTA J. & CONST. , Sept. 3, 1993, at G1, G6.
9. Mowing Down Our Children, N.Y. TIMES , Nov. 9, 1992, at A16. The victims of gun violence are disproportionately young black males. According to Justice Department statistics, nearly 60% of all firearms-related teenage homicide victims are black males, while black males account for only about 7% of that age group in the total population. A September 1993 Department of Health and Human Services report found that young black men between the ages of 15 to 24 are 10 times more likely to die from homicide than whites of the same age. From 1985 through 1990, gunshot deaths for black males of those ages more than doubled. A Murderous Double Standard, N.Y. TIMES, Sept. 23, 1993, at A26. The firearms death rate for black males aged 15 -24 more than tripled from 1984 to 1993, increasing from 55.9 per 100,000 to 176.8 per 100,000. Wasowicz, supra note 3. In our most violent cities, like New York, New Orleans, Washington, D.C., Los Angeles, and Detroit, a black male between 15 and 25 is more likely to die of gunshot wounds than was a U.S. soldier on a tour of duty during the Vietnam War. Diane Weathers, Stop the Guns, ESSENCE , Dec. 1993, at 67, 70. This phenomenon does not trouble the gun lobby. See infra notes 256 -57 and accompanying text.
10. Guns trail only automobiles as risk factors for injury and death. See supra note 8 and accompanying text. But "unlike other inherently dangerous consumer products, firearms are virtually unregulated." SUGARMANN & RAND, supra note 3, at 26. Unlike automobiles, neither proof of safety proficiency nor proof of insurance is required to own and operate a gun. Gun makers are free to manufacture and sell any type of firearm, provided only that the weapon uses .50 caliber or less ammunition, has a barrel of a set minimum length, and is not fully automatic ( i.e. , the weapon must require a separate pull of the trigger to fire each bullet). Id. at 17.
11. This position is described throughout this Article as the "narrow- individual-right" view. This view is sometimes mischaracterized by courts and gun-rights advocates alike as the "collective right" or "states' right" view. As one commentator has explained:
Another commonly recurring question is whether the right guaranteed is a 'collective' or an 'individual' one ¾ i.e. does it reside only in the people as a whole, or in individual citizens? Aside from the metaphysical difficulty of how something can exist in a whole without existing in any of its parts, it is submitted that this is really a meaningless distinction ¾ the better question being couched in terms of the purposes for which arms may be kept and borne.
Ralph J. Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 CATH. U.L. REV. 53, 55 n.20 (1966). Scholarly works espousing the narrow-individual-right view include: Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365 (1993); Lawrence D. Cress, An Armed Commmunity: The Origins and Meaning of the Right to Bear Arms, 71 J. AM. HIST. 22 (1984); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L. REV. 5 (1989); Peter B. Feller & Karl L. Gotting, The Second Amendment: A Second Look, 61 NW. U. L. REV. 46 (1966); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107 (1991); Rohner, supra; and Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L.Q. 961 (1975).
12. This position is described throughout this Article as the "broad- individual-right view." Scholarly works espousing the broad-individual-right view include: Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131 (1991); Donald L. Beschle, Reconsidering the Second Amendment: Constitutional Protection for a Right to Security, 9 HAMLINE L. REV. 69 (1986); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 90 GEO. L.J. 309 (1991); Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign, 36 OKLA. L. REV. 65 (1983); Richard E. Gardiner, To Preserve Liberty ¾ A Look at the Right to Keep and Bear Arms, 10 N. KY. L. REV. 63 (1982); STEPHEN (1984); Stephen Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms", 49 LAW & CONTEMP. PROBS. 151 (1986); David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL. 559 (1986); Donald B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983); Sanford Levinson, The Embarassing Second Amendment, 99 YALE L.J. 637 (1989); Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self Preservation, 39 ALA. L. REV. 103 (1987); Robert E. Shalhope, Ideological Origins of the Second Amendment, 69 J. AM. HIST. 599 (1982); William Van Alstyne, The Second Amendment and the Personal Right to Bear Arms, 43 DUKE L.J. 1236 (1994).
13. U.S. CONST. amend. II.
14. E.g., Kates, supra note 12, at 268.
15. See, e.g., id. at 214 -18 (analyzing the historical composition and mission of the state militias).
16. Id. at 228.
17. Id. at 228 -29 (illustrating the personal views of Thomas Jefferson, John Adams, James Madison, and Patrick Henry).
18. See, e.g., United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) ("[T]he Second Amendment only confers a collective right of keeping and bearing arms . . . . "); Kates, supra note 12, at 206 (describing one group of scholars as holding an "exclusively state's right view," and as "those who claim that the amendment guarantees nothing to individuals, protects only the state's right to maintain organized military units, and thus poses no obstacle to gun control," and contrasting that position with the "individual right" view of "those who claim that the amendment guarantees some sort of individual right to arms"); see also Feller & Gotting, supra note 11, at 69 ("[T]he 'right of the people' [to bear arms] refers to the collective right of the body politic of each state . . . ." (footnote omitted)).
19. See, e.g., Ehrman & Henigan, supra note 11, at 34 -35 (describing the historical composition of state militias).
20. See, e.g., id. at 21 (describing the continued existence of the state militias as a compromise critical to securing passage of the Bill of Rights); see also Perpich v. United States Dept. of Defense, 880 F.2d 11, 23 (8th Cir. 1989) ("[The Second Amendment] was intended to reassure states- rights advocates who feared the power of a large federal standing army would diminish the 'security of a free state.' [It] guaranteed the perpetual existence of a viable militia as a continued check on the military power of the federal government." (citation omitted)), aff 'd on other grounds, 496 U.S. 334 (1990).
21. Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 430 (1985). Instead, constitutional provisions can at least clearly exclude some possibilities ¾ the "easy cases" ¾ albeit leaving a range of possible interpretations from which the law must choose. Id. at 428 -31.
22. As the foremost proponent of originalism has explained:
The search is not for subjective intention. If someone found a letter from George Washington to Martha telling her that what he meant by the 'power to lay taxes' was not what other people meant, that would not change our reading of the Constitution the slightest. Nor would the subjective intention of all the members of the ratifying Convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean.
ROBERT H. BORK, THE TEMPTING OF AMERICA 144 (1990). In fact, Bork has explicitly rejected the gun lobby's story of the Second Amendment. See infra note 218 and accompanying text.
23. THE FEDERALIST No. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961).
24. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS 386 (Jonathan Elliot ed., Philadelphia, J.B. Lippincott & Co., 2d ed. 1859).
25. See examples collected in Henigan, supra note 11, at 119 -22 (detailing the gun lobby's misrepresentations of the passages quoted in the text).
26. The militia was always a government-organized fighting force. Each colony, and later each state, imposed some form of discipline and training on militia members, generally requiring four to eight days of training (or "mustering") per year, furnishing arms and other equipment, imposing sanctions for failure to attend training or maintain equipment, providing some militia service away from the home community, and granting certain exemptions from militia service, generally for teachers and ministers. The militia never encompassed the entire citizenry. The colonial and subsequent state militias were modeled on the English system, covering only able-bodied males between the ages of 18 and 45, or sometimes 18 - 60 year-olds. See generally WILLIAM H. RIKER, SOLDIERS OF THE STATES: THE ROLE OF THE NATIONAL GUARD IN AMERICAN DEMOCRACY 11-12 (1957). A definition of militia relatively contemporaneous to the Second Amendment's ratification reinforces this view:
MILITIA, n. [L. from miles, a soldier . . . .] The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.
2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (New York, S. Converse 1828) (emphasis added). Note that this definition is itself quite narrow, even before attaching the "well regulated" modifier of the Second Amendment's text.
27. See, e.g., Tony Mauro, 2d Amendment: A Right to Own Arms?, USA TODAY , Nov. 20, 1991, at 11A (quoting gun-rights litigator Stephen Halbrook, who claimed that "the meat of the amendment" is found in the second clause). Of course no clause in the Constitution is without meaning. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
28. A number of the proposals from colonial leaders and from state ratifying conventions ¾ including those of Massachussetts and New Hampshire ¾ did not connect the right to bear arms to maintenance of a militia. 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 681, 761 (1971). The Pennsylvania ratification convention's "minority report" listed both self-defense and hunting as activities covered by the right to bear arms. Id. at 665 - 73.
29. One commentator has suggested that he would "prefer to let the framers sleep. Just as the framers, in their day, judged by their lights, so must we, in our day, judge by ours." MICHAEL J. POERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS 75 (1982); see also Sanford Levinson, Law as Literature, 60 TEX. L. REV. 373, 379 (1982) (questioning "why intentions of long-dead people from a different social world should influence us").
30. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. TEX. L. REV. 433, 438 (1986).
31. The "well-regulated Militia" has changed drastically since 1791. By the dawn of the 20th Century, the citizens' militias contemplated in 1791 had yielded more than 100 years of unmitigated failure. Frederick B. Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181, 189 - 93 (1940). Beginning in 1903 with the Dick Act, and continuing with a series of reforms over the next 30 years, the militia was thoroughly professionalized, brought under control of the Regular Army, and clearly distinguished from the citizens' "unorganized militia." RIKER, supra note 26, at 80. The membership of today's militia is statutorily defined as
all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and . . . female citizens of the United States who are members of the National Guard.
10 U.S.C. § 311(a) (Supp. V 1993). The statute also distinguishes between the "organized militia" ¾ consisting of the National Guard and Naval Militia ¾ and the "unorganized militia," consisting of the rest of the above-defined militia. 10 U.S.C. § 311(b) (1988). While the notion of a broad-based citizens' militia lives on in this "unorganized militia," it is hardly one of universal service. The statute's exclusions from the militia undercut any claim of a right to bear arms for most women, and for all men under 17, over 45, or not physically fit to serve. In any case, today's "unorganized militia" does not correspond with the Second Amendment's notion of a "well-regulated" militia, because the unorganized militia is not trained, disciplined, drilled, or otherwise "regulated" in any way. At the same time, today's organized militia ¾ the National Guard ¾ is an even more thoroughly regulated state fighting force than the government-organized militia of 1791. Nor is it any longer necessary for members of the National Guard to keep their weapons at home. The federal government provides all firearms. Ehrman & Henigan, supra note 11, at 38.
32. The slow-firing, low-ammunition-capacity firearms of the late 18th and early 19th centuries were necessary tools for a citizenry living with no organized police forces, facing the constant threat of attacks by Native American guerrilla warriors, and acquiring most of its meat through hunting. Most of the rapid-firing high-ammunition-capacity firearms of the late 20th century bear little mechanical or practical relation to their earlier counterparts.
33. Erwin Griswold, Phantom Second Amendment 'Rights', WASH. POST, Nov. 4, 1990, at C7.
34. 307 U.S. 174 (1939).
35. Id. at 178.
39. Maryland v. United States, 381 U.S. 41, 46 (1965) ("The National Guard is the modern Militia reserved to the States by Art. I, § 8, c. 15, 16 of the Constitution." (footnotes omitted)); see Perpich v. Department of Defense, 496 U.S. 334, 355 (1990) ("Notwithstanding the brief periods of federal service, the members of the state Guard unit continue to satisfy [the] description of a militia."). The Perpich Court rejected the NRA's contrary suggestion, in its brief amicus curiae, that the National Guard should not be considered the contemporary "well regulated Militia." Brief of Amicus Curiae Firearms Civil Rights Legal Defense Fund at 2-13, Perpich (No. 89 -542); see also Henigan, supra note 11, at 109 n.10 (describing the Firearms Civil Rights Legal Defense Fund as an arm of the NRA).
40. See, e.g., Kates, supra note 12, at 248 -50; Levinson, supra note 12, at 654 -55.
41. See, e.g., Cases v. United States, 131 F.2d 916, 922-23 (1st Cir. 1942) ("[W]e do not feel that the Supreme Court in [ Miller] was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go."), cert. denied, 319 U.S. 770 (1943); Feller & Gotting, supra note 11, at 65 (stating that the Miller Court "preferred to dispose of the case on what was essentially a matter of proof ").
Gun-rights advocates also insist that Miller endorsed a citizen-wide definition of the well-regulated militia. See, e.g., Kates, supra note 12, at 249 n.192. The Miller Court described the militia of 1791 not as a collection of all citizens, but of "all males physically capable of acting in concert for the common defense." 307 U.S. at 179. The Court also emphasized that membership in the militia involved training and discipline, and was more than the unorganized mass of citizens bearing arms for their own purposes. Id. at 178 -79 (stating that the "militia" of 1791 described a military force that "the States were expected to maintain and train" and a "body of citizens enrolled for military discipline" (emphases added)).
42. 116 U.S. 252, 269 (1886).
43. Illinois Military Code, 1879 Ill. Laws 192, 203-04, art. XI, §§ 5 - 6 (current version at ILL. ANN. STAT. ch. 20, para. 1805, § 24 (Smith-Hurd 1993)).
44. Presser, 116 U.S. at 254 -55.
45. Id. The Supreme Court rejected the defendant's Second Amendment argument on non-incorporation grounds. Id. at 265 (citing United States v. Cruikshank, 92 U.S. 542, 552 (1876)). The Court also rebuffed Presser's argument under the Fourteenth Amendment's Privileges and Immunities Clause, that citizens have a right to be armed in order to participate in private military groups. Id. at 266 - 68. The Court framed Presser's claim as whether a federal right to be armed in order to participate in military activities applies to any citizen not enrolled in the "organized volunteer militia." Id. at 266. Given the Court's view of the militia as a necessary tool for the federal government to "maintain[ ] public security," the answer was a resounding no. Id. at 267- 68.
46. U.S. CONST. art. I, § 8, cl. 15 ("The Congress shall have Power . . . [t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions . . . ."). The militia's constitutional role in suppressing domestic insurrection is also reflected in legislative enactments. See 10 U.S.C. §§ 331-333 (giving the President power to call state militias into federal service to put down insurrections against state or federal governments, to enforce federal or state laws, and to end obstructions of justice). Presidents Eisenhower and Kennedy relied on these provisions when, faced with obstructions of justice, domestic violence, and unlawful conspiracies opposed to public school desegregation in the South, they called out the Arkansas, Mississippi, and Alabama National Guards. See Exec. Order No. 10,730, 22 Fed. Reg. 7628 (1957) (Arkansas National Guard); Exec. Order No. 11,053, 27 Fed. Reg. 9681 (1962) (Mississippi National Guard); Exec. Order No. 11,118, 28 Fed. Reg. 9863 (1963) (Alabama National Guard). Interestingly, on these occasions federalization at least initially operated to prevent the National Guard units from engaging in insurrections. See JOHN K. MAHON, HISTORY OF THE MILITIA AND NATIONAL GUARD 225 -26 (1983) (describing the 1957-58 desegregation of the Little Rock, Arkansas schools); id. at 237-38 (describing Guard involvement in the desegregation of state universities in Mississippi and Alabama). Although libertarian and civic republican strains of the insurrectionist argument see a need for the people, as individuals, to rise up against tyranny, individuals need not be the only locus of power to struggle against a tyrannical government. Assuming that there is some value in having the Constitution protect the ability to foment insurrections, the history of the National Guard and the civil rights movement suggests that today, a right to bear arms limited to militia members may be enough to create any "desirable" insurrections, by states themselves, against the "tyrannical" federal government. In effect, one might seek to balance the power of various governments, preventing any one of them from slipping into despotism.
47. Henigan, supra note 11, at 115.
48. Sadly, attempts to justify such private armies on Second Amendment grounds did not end with the passing of the last century. In Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex. 1982), the United States District Court for the Southern District of Texas faced a modern revival of this argument. The Ku Klux Klan had engaged in systematic and violent harassment of Vietnamese fishermen along the Gulf Coast of Texas. Id. at 203 - 07. Klan members viewed the Vietnamese as unfairly competing with white fishermen. Id. at 212. The Texas Emergency Reserve ("TER"), a military arm of the Texas Klan, operated training camps in the State of Texas and from those camps trained operatives to attack and intimidate the Vietnamese fishermen. Id. at 203 - 07. In response to the plaintiffs' request that the court enjoin the activities of the TER, the Klan claimed that the Second Amendment barred not only the proposed injunction against its private military training, but also a Texas statute providing that "no body of men, other than the regularly organized state military forces of this State and the troops of the United States, shall associate themselves together as a military company or organization." Id. at 211 (quoting TEX. REV. STAT. ANN. art. 5780, § 6 (Vernon 1962) (current version at TEX. GOV. CODE ANN. § 431.010(a) (West 1990))). The court squarely rejected the Klan's claim, holding that "the Second Amendment does not imply any general constitutional right for individuals to bear arms and form private armies." Id. at 210 (finding that Texas may constitutionally prohibit private armies because the Second Amendment prohibits only such interference with the right to bear arms as would hinder the preservation of the militia, and because Texas "is the 'sole judge' of the steps to be taken to maintain its militia' "). The court further buttressed its approval of the Texas statute by ruling that the Second Amendment only protects the right to bear arms in the context of service in a government militia. Id. at 216 ("[D]efendants' military operations obviously have absolutely no relationship whatsoever to any state or federal militia.").
For other modern incarnations of the insurrectionist argument, and judicial rejection thereof, see United States v. Oakes, 564 F.2d 384, 387- 88 (10th Cir. 1977) (rejecting a claim that membership in a posse comitatus qualified a person for Second Amendment protection), cert. denied, 435 U.S. 926 (1978), and In re Cassidy, 51 N.Y.S.2d 202, 205 (App. Div. 1944) (finding that a litigant's "jubilation that there is the Second Amendment" was misplaced, in the course of holding that "there can be no justification for the organization of a private armed militia" to which Cassidy belonged). Along with Presser, these cases may reinforce Weberian fears regarding exclusive state control of the means of violence. See, e.g., Levinson, supra note 12, at 650 (citing MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 156 (A.M. Henderson & Talcott Parsons trans., 1947)). But adoption of the anti-insurrection view expressed by these courts reflects rational fear of the converse danger of legal approval for the stockpiling of private arsenals and the armament of private military groups. See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551, 614 -15 (1991).
Finally, as the facts of Vietnamese Fishermen particularly demonstrate, the insurrectionist view has troubling real-life implications in a highly-armed, hate-filled society. Others besides the Klan take the insurrectionist view: White power leaders like Aryan Nation's Louis R. Beam, Jr. invoke the motto, "Where ballots fail, bullets will prevail"; the Order's Bruce Pierce told the FBI that his group "hoped for a natural disaster, economic failure of the U.S. government, a major race war, or anything that would disrupt society in America so that he would be able to gather up his army of men and strike against the system, that being the U.S. government"; and survivalist groups like the American Pistol and Rifle Association view desegregation busing as "federal kidnapping . . . perhaps the most obvious proof today that the American people suffer under the heel of totalitarian government" and threaten to "remove[ ] federal officials 'by whatever means necessary.' " JAMES RIDGEWAY, BLOOD IN THE FACE 87, 91 (1990).
49. United States v. Cruikshank, 92 U.S. 542, 553 (1875); see also Presser, 116 U.S. at 265 ("[T]he Amendment is a limitation only upon the powers of Congress and the National government, and not upon that of the States.").
50. See, e.g., Stephen P. Halbrook, The Fourteenth Amendment and the Right to Bear and Keep Arms: The Intent of the Framers, in SUBCOMMITTEE ON THE CONSTITUTION OF THE SENATE COMM. ON THE JUDICIARY, 97th CONG., 2d SESS., THE RIGHT TO KEEP AND BEAR ARMS 68 (Comm. Print 1982) [hereinafter THE RIGHT TO KEEP AND BEAR ARMS].
51. E.g., Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
52. 965 F.2d 723, 731 (9th Cir. 1992) (upholding California's assault-weapon ban and rejecting the NRA's Second Amendment challenge on grounds that the Second Amendment is not applied to the States through the Fourteenth Amendment).
53. 445 U.S. 55 (1980).
54. Id. at 66.
55. Id. at 65 n.8 (citing United States v. Miller, 307 U.S. 174, 178 (1939), to support the proposition that no constitutionally protected liberties are violated by Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 1201(a)(1)(1988)).
56. Gun-rights advocates have argued that the Court adopted a broad view of the Second Amendment in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). See, e.g., Thomas M. Moncure, The Second Amendment Ain't About Hunting, 1991 HOW. L.J. 589, 595. As proof that the right to bear arms extends to all citizens, not just members of the state militia, the gun lobby points to a line in Verdugo-Urquidez: " '[T]he people' protected by the Fourth Amendment, and by the First and Second Amendments . . . refers to a class of persons who are part of a national community . . . . " E.g., Petition for Certiorari, at 26 (quoting Verdugo-Urquidez), Farmer v. Higgins, 498 U.S. 104 (1991) (No. 90 - 600) (denying certiorari). Verdugo-Urquidez was a case about the Fourth, not the Second, Amendment, specifically addressing the issue of whether foreign nationals living in foreign countries should receive Fourth Amendment protections. Id. Furthermore, the Court's comment about "the people" does not even begin to address the central question of the Second Amendment's scope: whether the right to bear arms applies to "the people" for all purposes, or only in connection with militia service. See Brief for Amici Curiae The Center to Prevent Handgun Violence Legal Action Project et al. at 11 n.15, Farmer (No. 90 - 600) (arguing that Verdugo-Urquidez does not alter Miller's interpretation of the Second Amendment).
57. See United States v. Hale, 978 F.2d 1016, 1018 -20 (8th Cir. 1992) (finding that absent a showing that possession of a weapon has a reasonable relationship to the preservation of a well-regulated militia, the Second Amendment does not guarantee the right to possess a weapon), cert. denied, 113 S. Ct. 1614 (1993); Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir. 1990) (dismissing as without merit appellee's claims that the Second Amendment provides a right to possess machineguns), cert. denied, 498 U.S. 104 (1991); United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (deciding that the right to posses a gun is not a fundamental right); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (finding that a right to possess handguns is not guaranteed by the Second Amendment), cert. denied, 464 U.S. 863 (1983); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) (finding that the Second Amendment does not guarantee the right to bear arms, though appellant was technically a member of the state militia and of a militia-type organization registered with the state), cert. denied, 435 U.S. 926 (1978); Marchese v. California, 545 F.2d 645, 646 (9th Cir. 1976) (finding that the "compelling state interest" standard does not apply to the right to bear arms); United States v. Warin, 530 F.2d 103, 106 (6th Cir.) (finding that possession of a weapon must bear a reasonable relation to the preservation of a well-regulated militia), cert. denied, 426 U.S. 948 (1976); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (same); Cases v. United States, 131 F.2d 916, 921-22 (1st Cir. 1942) (finding that the Second Amendment prevents only the national government from infringing on the right to bear arms, though even the bar on federal action is not absolute), cert. denied, 319 U.S. 770 (1943); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942) (finding that possession of a weapon must bear a reasonable relation to the preservation of a well-regulated militia), rev'd on other grounds, 319 U.S. 463 (1943). Dozens of other federal and state courts have reached the same conclusion. See Henigan, supra note 11, at 108 n.9 (collecting cases).
58. See United States v. Ransom, 515 F.2d 885, 891 (5th Cir. 1975) (applying only rational basis scrutiny to the defendants' equal-protection challenge of their convictions for possession of unregistered machineguns); see also United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971) (relying on Miller to uphold a defendant's conviction for possession of a sawed-off shotgun). Neither the District of Columbia Circuit, nor other courts at this level of the federal judicial system (the Federal Circuit and the Temporary Emergency Court of Appeals), have decided Second Amendment issues.
59. See, e.g., Farmer, 907 F.2d at 1045 (dismissing as without merit a Second Amendment challenge to a ban on private ownership of machineguns); Warin, 530 F.2d at 106 ("[T]here is absolutely no evidence that a submachine gun in the hands of an individual 'sedentary militia' member would have any, much less a 'reasonable relationship to the preservation or efficiency of a well regulated militia.' "); Cases, 131 F.2d at 922-23 (rejecting the contention that Miller's holding prevents Congress from regulating private possession and use of "distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns," and finding it "inconceivable that a private person could have any legitimate reason for having such a weapon"); Sandidge v. United States, 520 A.2d 1057, 1058 (D.C.) ("We reject appellant's contention that Miller stands for the proposition that Congress may regulate only those classes of weapons which have no relationship to the militia."), cert. denied, 484 U.S. 868 (1987).
60. Oakes, 564 F.2d at 387 (rejecting the argument that a prosecution for possession of a machinegun violated the Second Amendment right to bear arms). The court also rejected the defendant's claim that the Second Amendment applied to him even though, as a male between the ages of 21 and 45, he was a member of the Kansas state militia. Id. at 386 - 87.
61. Quilici, 695 F.2d at 270 (citing Miller).
62. 18 U.S.C. § 922(o) (1988 & Supp. V 1993); Farmer, 907 F.2d at 1043; see also Ethan Bronner, Curbs on Machine Guns Kept by Court, BOSTON GLOBE, Jan. 15, 1991, at 11.
63. Petition for Certiorari at 27, Farmer v. Higgins, 498 U.S. 104 (No. 90 - 600).
64. 978 F.2d 1016 (8th Cir. 1992), cert. denied, 113 S. Ct. 1614 (1993).
65. Id. at 1020.
66. Id. (rejecting as inapplicable the appellant's argument that United States v. Verdugo-Urquidez demonstrated that Second Amendment protections apply to individuals).
67. United States v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988).
68. See Ehrman & Henigan, supra note 11, at 46 nn.287- 92 (collecting cases).
69. Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (upholding a village ordinance banning the possession of any handgun within village boundaries), cert. denied, 464 U.S. 863 (1983).
70. Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir. 1990) (construing the Firearms Owners' Protection Act as prohibiting the possession of machineguns not lawfully possessed prior to May 16, 1986, and rejecting arguments that the Act violated the Second Amendment), cert. denied, 498 U.S. 104 (1991). Some gun-rights advocates claim that the case law does not question a fundamental right for all private citizens to bear arms because the courts have only upheld firearms restrictions on children, the insane, and felons. See, e.g., Donald B. Kates, Jr., Why Gun Ownership Is a Right, L.A. TIMES , Nov. 29, 1993, at B7. This disingenuous argument fails to take account of the handgun and machinegun bans upheld in Quilici and Farmer, respectively.
71. See United States v. Three Winchester 30 -30 Caliber Lever Action Carbines, 363 F. Supp. 322, 323 (E.D. Wis. 1973) (finding that the forfeiture of firearms used for hunting does not violate the Second Amendment); State v. Barnhardt, 680 P.2d 7, 9 (Or. Ct. App. 1984) (finding that a rule prohibiting the use of rifles during elk hunting season, unless a hunter had an official elk rifle tag, did not violate the Second Amendment because the Constitution does not forbid "the regulation of the use of a weapon"); State v. Walsh, 970 P.2d 974 (Wash. 1994) (rejecting as without merit arguments that a "spotlighting" statute, which prohibits the hunting of big game with spotlights or artificial light, was unconstitutionally overbroad because it violates the Second Amendment).
72. See, e.g., Fields v. Harris, 675 F.2d 219, 220 (8th Cir.) (finding that the Second Amendment confers no substantive right of self- defense), cert. denied, 459 U.S. 869 (1982); People v. Evans, 115 Cal. Rptr. 304, 308 (Cal. Ct. App. 1974) (finding that a state statute prohibiting ex-felons from possessing firearms did not deprive a defendant of the constitutional right of self-defense); Ex Parte Williams, 786 S.W.2d 781, 782 (Tex. Ct. App. 1990) (finding that the constitutional right to bear arms for self-defense is not absolute); Masters v. State, 653 S.W.2d 944, 945 (Tex. Ct. App. 1983) (holding that the "Second Amendment . . . does not contemplate . . . granting appellant the right to carry 'swords' upon his person . . . for apparent self-defense purposes"), aff 'd, 685 S.W.2d 654 (Tex. Crim. App.) (finding that the Second Amendment grants no right of self-defense and permits state restrictions on the ability to carry weapons on one's person), cert. denied, 474 U.S. 853 (1985); State v. Vlacil, 645 P.2d 677, 681 (Utah 1982) (finding that a statute prohibiting weapons possession by all noncitizens does not violate the Second Amendment, which provides only a collective right to bear arms); cf. Justice v. Elrod, 832 F.2d 1048, 1051 (7th Cir. 1987) (rejecting a "vague and legally ungrounded invocation of a supposed pre-constitutional right to bear arms ¾ a Hobbesian right of self-defense in the state of nature," along with a Second Amendment claim); Quilici v. Village of Morton Grove, 532 F. Supp. 1169, 1183 (N.D. Ill. 1981) (rejecting an asserted Ninth Amendment right of armed self-defense, based on sources frequently asserted for similar Second Amendment claims), aff 'd, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
73. United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex. 1982); In re Cassidy, 51 N.Y.S.2d 202, 205 (App. Div. 1944); Vlacil, 645 P.2d at 681.
74. United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied , 113 S. Ct. 1614 (1993); Farmer, 907 F.2d at 1045 (dismissing as without warrant the contention that the Second Amendment permits manufacture of machineguns); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (ruling that a village gun ordinance is not barred by the Second Amendment because the Amendment does not apply to the states), cert. denied, 464 U.S. 863 (1983); Oakes, 564 F.2d at 387 (ruling that though appellant was technically a member of the state militia and was a member of a registered militia-type organization, the Second Amendment did not grant him the right to bear an unregistered firearm); United States v. Warin, 530 F.2d 103, 106 (6th Cir.) (finding that the Second Amendment did not protect appellant from prosecution under the National Firearms Act when possession of a submachinegun had no reasonable relationship to a well-regulated militia), cert. denied, 426 U.S. 948 (1976); United States v. Tomlin, 454 F.2d 176, 176 (9th Cir.) (dismissing the contention that the Second Amendment protects against prosecution under the National Firearms Act), cert. denied, 406 U.S. 924 (1972); Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) (finding that a conviction did not violate Second Amendment rights when appellant, by possessing a .38 caliber revolver, did not intend to contribute to the efficiency of the well-regulated militia), cert. denied, 319 U.S. 770 (1943); United States v. Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. 1981) (ruling that a defendant's status as a rural police officer did not confer a Second Amendment right to bear arms), aff 'd mem., 740 F.2d 952 (1st Cir.), cert. denied, 469 U.S. 842 (1984); United States v. Sandidge, 520 A.2d 1057, 1059 (D.C.) (finding that possession of a handgun bears no "relationship to the District of Columbia's desire and ability to preserve a well regulated militia"), cert. denied, 484 U.S. 868 (1987).
75. Burton v. Sills, 248 A.2d 521, 528 (N.J. 1968) (concluding that a "regulation . . . which does not impair the maintenance of the States' active, organized militia is not at all in violation of . . . the second amendment" (citations omitted)), appeal dismissed per curiam, 394 U.S. 812 (1969).
76. See, e.g., United States v. Carver, 260 U.S. 482, 490 (1923) ( "The denial of a writ of certiorari imports no expression of opinion upon the merits of the case . . . .").
77. Peter Linzer, The Meaning of Certiorari Denials, 79 COLUM. L. REV. 1227, 1229 (1979) (arguing that a denial of certiorari indicates that most of the Justices were not strongly dissatisfied with the opinion below); see also id. at 1278 (quoting Justice Harlan's possibly serious, possibly hyperbolic, comment to Learned Hand that "when you read in Monday morning's New York Times 'Certiorari denied' to one of your cases, then despite the usual teachings, what the notation really means is 'judgment affirmed' ").
78. Id. at 1277-78 (stating that many courts have ignored the Supreme Court's dicta regarding the insignificance of certiorari denials).
79. Id. at 1278.
81. SUP. CT. R. 10.1(c) (formerly SUP. CT. R. 17(1)(c)).
83. Sandidge v. United States, 520 A.2d 1057, 1058 -59 (D.C.), cert. denied, 484 U.S. 868 (1987).
84. Id. at 1058.
85. Cases v. United States, 131 F.2d 916, 921-22 (1st Cir. 1942) (finding that the Second Amendment prevents only the national government from infringing upon the right to bear arms), cert. denied, 319 U.S. 770 (1943); United States v. Warin, 530 F.2d 103, 105 - 06 (6th Cir.) (holding that the possession of a weapon must have some present relationship to the militia to be protected), cert. denied, 426 U.S. 948 (1976); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (finding that the Second Amendment does not apply to the states), cert. denied, 464 U.S. 863 (1983); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 113 S. Ct. 1614 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) (finding that technical membership in the state militia and paramilitary group is not sufficiently related to the well-regulated militia to receive Second Amendment protection), cert. denied, 435 U.S. 926 (1978); Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir. 1990) (dismissing as without merit the contention that the Second Amendment protects the manufacture of machineguns), cert. denied, 498 U.S. 104 (1991); see also United States v. Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. 1981) (ruling that status as a rural police officer did not grant the defendant a Second Amendment right to bear arms), aff 'd mem., 740 U.S. 952 (1st Cir.), cert. denied, 469 U.S. 842 (1984).
86. Linzer, supra note 77, at 1285.
87. 248 A.2d 521, 528 (N.J. 1968) (ruling that state licensing requirements that did not impair the preservation of a well-regulated militia did not violate the Second Amendment), appeal dismissed per curiam, 394 U.S. 812 (1969).
89. See, e.g., Edelman v. Jordan, 415 U.S. 651, 670 -71 (1974) (noting a limited precedential effect of summary dispositions, but overturning several such decisions on the way to finding a lack of state consent to suit in federal court). See generally ROBERT L. STERN ET AL., SUPREME COURT PRACTICE § 4.28, at 215 -16 (7th ed. 1993) (discussing the precedential effect of Supreme Court summary dispositions on the Court itself).
90. E.g., Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983) (summarizing cases and describing the precedential effect of summary disposition in the lower state and federal courts). See generally STERN ET AL. , supra note 89, § 4.29, at 219 (same).
91. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).
92. See Anderson, 460 U.S. at 784 n.5.
93. Statement as to Jurisdiction at 3-4, Burton v. Sills, 394 U.S. 812 (1969) (No. 69 -1158) (per curiam). At the time of Burton, the Supreme Court heard cases not only on certiorari, but also on appeal. 28 U.S.C. § 1257 (1964) (amended 1988). In such instances, the party seeking review filed a jurisdictional statement instead of a petition for a writ of certiorari. S. Ct. R. 13.2 (1968).
94. Burton v. Sills, 248 A.2d 521, 528 -29 (1968), appeal dismissed per curiam, 394 U.S. 812 (1969).
95. Id. at 526 -28.
96. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (incorporating the Sixth Amendment right to jury trial in serious criminal cases into the Fourteeth Amendment's Due Process Clause).
97. Linzer, supra note 77, at 1249 (citations omitted).
98. See, e.g., Coleman v. Thompson, 501 U.S. 722, 745 -51 (1991) (concluding that recent habeas jurisprudence had effectively overruled Fay v. Noia, 372 U.S. 391 (1963)).
99. For reaction to the Rehnquist Court's rewrite of the civil rights laws, see the legislative history of the Civil Rights Act of 1991. See, e.g., H.R. Rep. No. 40, 102d Cong., 1st Sess. 23-26 (1991) (discussing "[t]he need to overturn" Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 655 (1989), a case characterized as drastically cutting back on 18 years of settled Court precedent), reprinted in 1991 U.S.C.C.A.N. 549, 561- 64.
100. The Rehnquist Court refused to grant certiorari in Farmer v. Higgins, 498 U.S 104 (1991).
101. See John E. Yang, N.R.A. Shifts its Challenge to California Gun Law, WASH. POST, Nov. 18, 1992, at A4 (reporting that the NRA declined to apply for certiorari after Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723, 731 (9th Cir. 1992), because the Supreme Court was unlikely to grant the petition).
102. The NRA-supported challenges to the Brady Law have been made on Tenth, not Second, Amendment grounds ¾ that the law unconstitutionally forces local law-enforcement officials to act on Congress's order. See, e.g., George DeLama, Gun Control Drama Gets New Twist, TIMES-PICAYUNE (New Orleans), Mar. 20, 1994, at A12; see also R. William Ide, III, Remarks to the National Press Club's Newsmaker Breakfast, Apr. 15, 1994, at 7 (on file with the Boston University Law Review) ("The ABA challenges [the NRA] to bring suit against the Brady Law on Second Amendment grounds. They should either put up or admit there is no Second Amendment guarantee.").
103. Levinson, supra note 12, at 637.
104. Williams, supra note 48, at 551.
105. Feller & Gotting, supra note 11, at 69 -70 ("The ideal of the supremacy of state militia over federal military power is a fading echo. The second amendment as the embodiment of that ideal is therefore obsolete.").
106. Id. at 69.
107. Gun-rights advocates argue that any focus on firearms regulation errs by focusing on the weapon rather than on the person wielding it. See, e.g., D. James Sceats, Jr., Violence in America: Time to Bite the Bullet Back, 268 JAMA 3070, 3046 (1992) ("The gun is not to blame; the person who holds it is.").
The logic underlying this NRA bumper-sticker philosophy is valid, as far as it goes. Guns do not "get off the shelf, get out of the box and hurt somebody" without human intervention, as then-NRA chief lobbyist James Jay Baker insightfully noted. Guy Gugliotta & Pierre Thomas, Bearing Arms vs. Despairing of Arms: The Battle for Control, WASH. POST, Feb. 16, 1992, at B1, B6. This simplistic argument ignores, however, the many studies indicating that although guns do not kill by themselves, they make killing easier and increase the likelihood of death or injury.
As one doctor has explained:
We often hear that "Guns don't kill people, people kill people." . . . Sometimes, no doubt, a person who is intent upon killing someone seeks out a lethal weapon. Far more often, gun-inflicted wounds ensue from impromptu arguments and fights . . . . These deaths would largely be replaced by non-fatal injuries if a gun were not handy. Thus a far more appropriate generality would be that "People without guns injure people, guns kill them."
Susan P. Baker, Without Guns, Do People Kill People?, 75 AM. J. PUB. HEALTH 587, 588 (1985). To put it more plainly, as a police officer remarked to a journalist: "[W]e've yet to see a drive-by stabbing." Handguns Kill More than They Protect, CHI. TRIB. , Sept. 14, 1992, at 16. See generally Katherine K. Christoffel, Violent Death and Injury in U.S. Children and Adolescents, 144 AM. J. DISEASES CHILD. 697, 702 (1990) (citing studies showing that handguns are more efficiently lethal than knives, other weapons, or fists); Linda E. Saltzman et al., Weapon Involvement and Injury Outcomes in Family and Intimate Assaults, 267 JAMA 3043 (1992) (finding that firearm assaults on family and friends are 12 times likelier to result in death than nonfirearm assaults; that death is 3 times likelier than in assaults with knives or other cutting instruments, and 23.4 times more likely to result in death than with other weapons or bodily force alone); Robert Davis, Gun Foes Sense a Time to Seize the Moment, USA TODAY , Oct. 19, 1993, at 9A (stating that 1992 homicide statistics reveal that guns killed more that 68% of the 22,540 total homicide victims).
108. Gun-rights advocates argue that firearm regulation errs by focusing on the many law-abiding citizens who do not use guns for illegal purposes and would obey strict gun control laws, rather than on the criminal few, who put their guns to illicit use and would simply ignore a gun ban. This argument has been a staple of NRA lobbying for years. See, e.g., J. Warren Cassidy, The Case for Firearms, TIME , Jan. 29, 1990, at 22, 22 ("Antigun laws ¾ the waiting periods, background checks, handgun bans, etc. ¾ only harass those who obey them. Why should an honest citizen be deprived of a firearm for sport or self-defense when, for a gangster, obtaining a gun is just a matter of showing up on the right street corner with enough money?"). The "only outlaws" argument exaggerates and distorts the scope of the black market, ignoring the fact that many criminals do buy their weapons from legitimate gun dealers. See, e.g., Tom Diemer, Aiming for the Truth in Firefight over Gun Control, PLAIN DEALER (Cleveland), Oct. 10, 1993, at 1A (recalling that a 1991 Justice Department survey of 2100 state prison inmates found that 27% of those who admitted owning a handgun said they had purchased it from a retail outlet). The argument also fails to consider that most illegal weapons were originally purchased legally, then stolen or sold into the "black market." See, e.g., Michael R. Rand, Guns and Crime, BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, CRIME DATA BRIEF, Apr. 1994 (No. NCJ-147003, on file with the Boston University Law Review) (reporting that firearms thefts averaged about 341,000 annually from 1987- 92, but arguing that the actual numbers were undoubtedly higher because this annual average includes only reported thefts and because the figures do not count the total number of firearms stolen in each reported theft); see also Andrew J. McClurg, The Rhetoric of Gun Control , 42 AM. U. L. REV. 53, 106 & n.237 (1992) (stating that New York City law-enforcement agencies report that as many as 90% of firearms used in crimes within their jurisdiction were originally acquired out of state).
109. See, e.g., Cassidy, supra note 108, at 22 ("Violent crime continues to rise in cities like New York and Washington even after severe firearm-control statutes were rushed into place.") Most of these 20,000 statutes, however, do not restrict sales or possession of firearms. They merely set zoning regulations for gun dealers or govern transportation and discharge of firearms within local boundaries. SUGARMANN & RAND, supra note 3, at 9.
Empirical studies have reached conflicting conclusions as to the efficacy of current gun laws. Compare Philip J. Cook, The Effect of Gun Availability on Violent Crime Patterns (stating that gun availability increases both the seriousness of and rate of violent crime), in THE GUN CONTROL DEBATE 130 (Lee Nisbet ed., 1990) with Gary Kleck, The Relationship Between Gun Ownership Levels and Rates of Violence in the United States (rejecting any connection between levels of gun ownership and gun violence), in THE GUN CONTROL DEBATE, supra, at 123. Given the ease of evading all existing local or state firearm restrictions by purchasing weapons illegally in the black market or legally in a more permissive jurisdiction, the ambiguous results of such studies are no surprise. That uneven laws yield uncertain results is hardly an argument against strict firearm regulation; it is evidence that a significant reduction of gun violence will require comprehensive federal legislation.
110. This Article focuses on the rhetoric of the NRA, by far the largest and most prominent voice in the gun lobby. There are a number of other pro-gun lobbying groups, including Neal Knox's Firearms Coalition, the Citizens' Committee for the Right to Bear Arms, the Gun Owners of America, and the Gun Owners Action League. Most of these have some link to the NRA, and most are even more extreme; some are associated with survivalist and white-supremacist movements. SUGARMANN, supra note 2, at 129-40 (describing the NRA's "fellow travellers").
111. NRA Is Back, LaPierre Tells Board, AM. RIFLEMAN, Dec. 1992, at 47, 47 (reprinting LaPierre's September 1992 speech to the NRA Board of Directors).
112. See, e.g., 131 CONG. REC. 2027 (daily ed. May 8, 1985) (remarks of Rep. John McKernan, inserting the April 22, 1985 acceptance speech of NRA President Garcelon) (stating that the "NRA's most important responsibility" is "opposing gun control of all kinds and in all political jurisdictions").
The NRA was not always focused so intently on political lobbying. The group was founded in New York City in 1871 to "promote rifle practice" ¾ a goal based on concern over poor shooting by Union soldiers during the Civil War. OSHA GRAY DAVIDSON, UNDER FIRE 28 (1990). During its early years of existence, the organization was less interested in politics than in promoting riflery competitions and, later, hunting. Anti-gun control efforts began as early as 1911, when NRA President James Drain opposed New York's proposed Sullivan Law with the now-familiar claim that "[s]uch laws have the effect of arming the bad man and disarming the good one to the injury of the community." Id. at 29. At the national level, the NRA was vigorously opposing gun control legislation as early as the 1930s, unleashing a massive letter-writing campaign that resulted in a watered-down National Firearms Act of 1934. Three decades later, Senator Thomas Dodd (D-Conn.) blamed the gun lobby for a duplicitous effort that killed Dodd's bill, S. 1975, 88th Cong., 1st Sess. (1963), in August of 1963. The bill would have imposed new regulations on the sale of firearms in interstate commerce. SUGARMANN, supra note 2, at 36 -37.
The impetus for the NRA's reincarnation as a single-interest lobby came with a split in the membership over its response to the Gun Control Act of 1968 ("GCA"), finally enacted five years after John F. Kennedy's assassination. Although the NRA's then-Executive Vice President, Franklin Orth, testified in favor of the GCA, many NRA members were furious and violently oppposed any form of gun control. Davidson , supra, at 30. Ultimately, the NRA managed to water down the bill, persuading both houses of Congress to reject registration requirements included in Kennedy's original bill. Sugarmann , supra note 2, at 39 - 40. The split that began with divisions over the GCA exploded in the Cincinatti Revolt of 1977, when a group of Second Amendment absolutists headed by Harlan B. Carter seized control of the organization's leadership and placed single-minded defense of gun rights at the top of the NRA's agenda. DAVIDSON, supra, at 30. Current NRA Executive Vice President Wayne LaPierre, Jr. personifies the transition from a sportsman's group to a lobbying organization; LaPierre is a professional political consultant and "consumate Washington insider," who has displayed neither ability with, nor affinity for, firearms. Id. at 241.
113. Frank Smyth, Crossfire, VILLAGE VOICE, June 21, 1994, at 26. In 1993, the NRA outspent the largest gun control group, Handgun Control, Inc., by 12 to 1 on activities related to legislative affairs. Tom Diemer, Opponents of NRA Are Chipping Away, PLAIN DEALER (Cleveland), Oct. 12, 1993, at 1A (describing growing opposition to NRA). The NRA's overall $88 million annual budget in 1992 dwarfed that of Handgun Control, Inc. by almost 40 to 1. Id.
The NRA's Political Victory Fund doles out millions of dollars each year to friends, and to challengers of enemies. DAVIDSON, supra note 112, at 80. Although not always effective, the NRA often buys itself legislative success. Id. For instance, a Washington Post story documented that 80% of the legislators who ultimately supported the NRA-drafted McClure-Volkmer Act of 1986 had received campaign contributions from the gun group. Id. The Post editorialized that the victory should be credited to the NRA's "paid army of House members." Id. The strings attached to NRA donations are clearly visible to all takers. The Political Victory Fund demands that politicians take what is effectively a loyalty oath ¾ a questionnaire asking whether the candidate favors background checks and restrictions on the purchase of semiautomatic assault weapons. Jim Drinkard, PACS Demand Answers Before Giving Funds, L.A. TIMES , Apr. 11, 1993, at A8.
114. In the first half of 1990 alone, the NRA sent out 51.3 million pieces of mail. Mailings included 344 ILA legislative alerts, 67 ILA fund raisers, 14 membership promotions, 3 insurance promotions, and 15 miscellaneous mailings. DAVIDSON, supra note 112, at 149. Former ILA Director Richard Gardiner estimates that the NRA spent $10 million on its membership mailings in 1991. Id. at 141.
115. The NRA must be admired for its effectiveness in mobilizing and educating its members as to effective lobbying techniques, including letter- writing and face-to-face confrontations in local meetings with legislators. Gun activists write frequent letters and columns laying out the finer points of these lobbying methods in American Rifleman, the NRA's lead publication. Each month, the magazine awards prizes to the NRA's Letter of the Month contest award winner.
116. The 3.3 million figure may be somewhat misleading. Dave Edmondson, a gun activist heading the NRA's State Association Coordinating Committee, says that half of the 900,000 new members who have joined since 1991 dropped out after one year. Smyth, supra note 113, at 30.
117. National Rifle Ass'n, What's the First Step to a Police State?, AM. RIFEMAN, Oct. 1993, at 52A (advertisement).
118. Letter from Wayne LaPierre, Executive Vice President, National Rifle Ass'n, to NRA Members, NRA Defend the Constitution Campaign 3 (June 1994) (on file with the Boston University Law Review).
119. All major national law-enforcement organizations have split with the NRA. In June of 1994, the major sportsman's magazine Field and Stream, "made a landmark decision to break with the NRA." Smyth, supra note 113, at 30.
120. The NRA has lost recent legislative battles, not only at the national level over the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993) (codified at 18 U.S.C. §§ 921- 924 (Supp. V 1993), and the assault-weapons ban of the 1994 crime bill, Public Safety and Recreational Firearms Use Protection Act, Pub. L. No. 103 -322, §§ 110101- 110106, 108 Stat. 1796 (1994) (codified at 18 U.S.C.A. §§ 921- 924 (West Supp. Nov. 1994), but also at the state level: in Virginia, 1993 Va. Acts ch. 486, § 1 (codified at VA. CODE ANN. § 18.2-308.2:2(Q) (Michie Supp. 1994)) (establishing a one-handgun-per-month purchase limit); Connecticut, Pub. Act No. 93-306 (1993) (enacting an assault-weapons ban); and New Jersey, Assembly Bill No. 7 (1992) (failing to repeal the assault-weapons ban of 1990 N.J. Laws ch. 32).
121. The gun lobby has been operating in the red for the last three years, and its reserves have slipped from $90 million to about half of that total. Philip Weiss, A Hoplophobe Among the Gunnies, N.Y. TIMES , Sept. 11, 1994, § 6 (Magazine), at 65. During the past two years, the NRA has outspent its revenues by almost $60 million, leading to a reduction in member services such as shooting competitions and firearms training. Smyth, supra note 113, at 30 (describing the NRA's emphasis on political action at the expense of the sporting and safety activities with which it has traditionally been associated). Even by 1988 these member services were receiving only 11% of NRA resources, down from 19% in 1980. Richard Lacayo, Under Fire, TIME , Jan. 29, 1990, at 16, 19. The group was so desperate to raise money that it sold a name-and-address list of its members for profit ¾ an act that would completely violate the gun lobby's concern that any listing of gun owners is a first step for confiscation. See Shirley R. Bonus, Attention NRA Members; You've Been Sold Out, GANNETT SERVICE NEWS, Mar. 2, 1994 (describing the columnist's reaction to discovering that the NRA had sold her name via an address list), available in LEXIS, News Library, Wires File. In the last few years, American Rifleman has also warned members that a variety of NRA brochures, pamphlets, and publications previously provided free of charge to members will now be "subscription only."
122. As one author summarizes the situation:
The gun-owning community [that the NRA] purports to represent has split, with fissures between sport shooters and Second Amendment 'fundamentalists' cracking visibly open for the first time . . . . Dissent is also on the rise internally with many of its state associations directly challenging national leaders. Meanwhile, most dues-paying NRA members have little sense of how the organization is run.
Smyth, supra note 113, at 26; see also Lacayo, supra note 121, at 16 ("Some NRA members complain that the organization is in the grip of extremists who have turned off the public . . . . "). A March 1993 Gallup Poll showed that a majority of gun owners favor many of the proposals opposed most vehemently by the NRA. The Brady Bill was supported by 88% of gun owners, while a complete ban on assault-weapon possession and a one-gun-a-month law similar to Virginia's 1993 enactment both garnered a 60% favorable rating. Dennis Cauchon, Poll: Owners Favor Gun Laws, USA TODAY , Mar. 17, 1993, at 1A. A January 1990 poll brought similar results. Lacayo, supra note 121, at 16.
Led by Ernest Lissabet, former NRA members have formed a counterlobby called the American Firearms Association, which consists of gun owners who favor "common sense" firearm regulation measures such as the assault-weapons ban and the Brady Law's waiting period. Lissabet told reporters, "This is a rebellion. The NRA is not the organization I joined a long time ago. It used to stand for good citizenship and sporting values . . . Now the NRA stands for Street Sweepers, 357 Magnums, AK 47s and for heaping ridicule on anybody who happens to oppose them." Joel P. Engardio, Ex-NRA Member Starts Gun Group of "Common Sense", BOSTON GLOBE, Aug. 17, 1993, at 11.
123. DAVIDSON, supra note 112, at 141; see also Smyth, supra note 113, at 31 ("The NRA is bleeding ¾ but like any wounded beast, it is likely to be more dangerous now than before.").
124. Compare, e.g., Chuck Raasch, NRA Shows Signs of Political Wounds, Gannett News Service, May 18, 1994, available in LEXIS, News Library, Wires File with Haya El Nasser, Gun Smoke Clears and the Lobbyists Are Still Standing, USA TODAY, Dec. 28, 1994, at 2A.
125. The 1994 crime bill's ban on 19 types of assault weapons and copycat models was a hard-fought victory for gun control activists. In the face of withering lobbying on both sides, the original measure only passed by a thin 216 -214 margin in the House, 1994 House Roll No. 156, May 5, 1994 (passage of H.R. 4296, 103d Cong., 2d Sess.), available in LEXIS, Legis Library, Votarc File, and a 56-43 margin in the Senate, 1993 Senate Vote No. 375, Nov. 17, 1993 (adoption of Feinstein amendment to S. 1607, 103d Cong., 1st Sess.), available in LEXIS, Legis Library, Votarc File. But the win may prove fleeting. See Naftali Bendavid, Losing Control; After Betting on Winners, NRA Targets Reform, LEGAL TIMES, Nov. 21, 1994, at 1. In the wake of its $4 million investment in the 1994 election cycle, the NRA takes credit for the Republican resurgence, and the lobby is now aiming to repeal the assault-weapon ban. Katherine Q. Seelye, Gingrich and N.R.A. Will Delay Effort to Repeal Ban on Assault Weapons, N.Y. TIMES , Jan. 28, 1995, at 7.
Despite a very itchy trigger finger, the NRA has regretfully agreed to an April 1995 target date to begin repeal of the ban. In the weeks before the storm, the repeal remains profoundly unpopular, with one NBC poll showing 4 to 1 public support for the ban. The tactic will likely be to attach the repeal to a separate provision setting mandatory minimum sentences for anyone using a gun while committing a crime. Id. By linking the unpopular repeal to a sensible law-and-order provision, the gun lobby hopes to force the consensus-seeking President into taking the politically bitter with the politically sweet.
In exchange for the gun lobby's cease-fire until April, Gingrich has also promised a series of "educational hearings intended to show that 'gun control does not reduce crime,' " in the words of Tanya K. Metaksa, the top NRA "educator" and lobbyist. The Republican plan is to wait until enactment of the less controversial (!) aspects of the Republican campaign manifesto. Id. With pro-gun Republicans picking up so many seats in the House, repeal is likely. Prospects for repeal are improving in the Senate ¾ new Senate Judiciary Chair Orrin Hatch is a long-time gun-rights supporter, and a battle is shaping up among presidential hopefuls over which might be the most pro-gun-rights. See Jerry Gray, Dole, in a 2d Nod to Right, Pledges to Fight Gun Ban, N.Y. TIMES , Mar. 18, 1995, at 1.
Even if the assault-weapons-ban repeal ultimately fails in the Senate, or in the face of a promised presidential veto, the gun lobby is bound to win most of the battles in the next two years. Emboldened NRA lobbyists and their resurgent Capitol Hill supporters will tear into the Bureau of Alcohol, Tobacco, and Firearms and the Federal Bureau of Investigation over the clumsy and brutal handlings of the Waco and Randy Weaver standoffs, respectively. Seelye, supra, at 7. In addition to airing legitimate outrage, the goal will be to emasculate enforcement of existing gun laws. When Republicans held the Senate in the early 1980s, the ATF budget was slashed by $40 million, a ban on the importation of surplus military rifles was lifted, and gun owners were given the green light to travel with their weapons through states in which their weapons would otherwise be illegal. Bendavid, supra, at 1. The Republican House has already begun work on similar steps, excluding the ATF from the current crime bill's extension of the good-faith exception to the exclusionary rule. H.R. 920, 104th Cong., 1st Sess., § 601(d) (1995).
126. By labelling every measure that in any way affects access to firearms as the first step down an inevitable slippery slope leading to confiscation of all weapons, the NRA attempts to keep its members in a state of constant panic and paranoia over the supposedly totalitarian machinations of an allegedly hostile federal government. As then-NRA President Ray Arnett once admitted to journalist Dan Moldea, "You keep any special interest group alive by nurturing the crisis atmosphere: 'Keep sending those cards and letters in. Keep sending money.' " DAVIDSON, supra note 112, at 149. Although one proposal, that of Senator John H. Chafee (R-R.I.), has called for a ban on handguns, it does not contemplate confiscation. S. 892, 103d Cong., 1st Sess. (1993). Virtually no one in the gun control movement calls for confiscation.
127. Fighting the Morton Grove, Illinois handgun ban, the NRA engaged in frequent misrepresentation, claiming that police would have power " 'to search any home, to seize and confiscate strictly on a suspicion that there may be a gun in the home.' " DAVIDSON, supra note 112, at 133. The ordinance provided for no such enforcement measures. Id.
128. According to then-Oklahoma Democratic Representative Mike Synar, who survived a nearly $200,000 NRA-funded campaign attack in 1992, "The NRA's whole lobbying technique is fear and intimidation." Davis, supra note 107, at 9A. Former Senator Howard Metzenbaum candidly admits that "there are a lot of senators and congresspersons who are afraid of the NRA." ABC News/"Time" Forum: Guns (ABC television broadcast, Jan. 24, 1990), available in LEXIS, News Library, Script File. And the fear is certainly not unwarranted, as Congressmen Synar discovered in 1994, when the relentless NRA supported a successful challenge to him in the Democratic primary. See Sara Rimer, Oklahoma Democrat Loses Democratic Primary, N.Y. TIMES , Sept. 21, 1994, at A21.
129. In full-page print advertisements in Time, Newsweek, and USA Today, the NRA claimed falsely that former San Jose, California Police Chief Joseph D. McNamara favored legalization of all drugs. McNamara, a prominent gun control advocate in the law-enforcement community, had never said he supported legalizing drugs. DAVIDSON, supra note 112, at 102- 03; cf. Wayne LaPierre, The Final War Has Begun, AM. RIFELMAN, June 1994, at 51, 53 (labeling Rep. Charles Schumer as "the criminal's best friend in Congress" based on his "consistent anti-gun record").
130. See supra note 113.
131. Former San Jose, California Police Chief Joseph D. McNamara describes the NRA as a "shill for the gun manufacturers and gun dealers." DAVIDSON, supra note 112, at 101- 02.
132. David C. Morrison, The Domestic Arms Race, 24 Nat'l J. 1548 (1992).
133. AM. RIFELMAN, Apr. 1994, at cover. The overwhelming majority of American Rifleman covers are devoted to lavish praise of various firearms products.
134. In 1990 the firearms industry spent $7.4 million advertising in NRA publications, comprising eight percent of the toal NRA budget. During the 1960s, when other revenues and membership rolls were lower, industry advertising could account for more than 25% of the NRA budget. SUGARMANN, supra note 2, at 88.
135. For the gun lobby, fear is an equally effective selling point for its commercial interests as it is in the political arena. See supra note 126 and accompanying text. As one former congresswoman said of the NRA's "Refuse to Be A Victim" campaign, which is designed to enlist women as self-defense-oriented gun owners: "[The] message is clear: don't be a victim, buy a gun; it's purpose is to scare women into buying a gun . . . . These ads are exploiting fear to market a product, a product which kills far more innocent people than it protects." Michael R. Irwin, Congresswomen Miss the Mark On 'Refuse to Be a Victim', AM. RIFLEMAN, Dec. 1993, at 22, 22 (reporting the remarks of Pennsylvania Rep. Marjorie Margolies-Mezvinsky).
136. As the NRA thundered in a recent issue of American Rifleman:
It doesn't matter to the Washington aristocracy that criminal predators will rule your streets while the political storm troopers take you downtown. They don't care if thugs break into your home or steal away with your children. What matters to them is you. What they want are your rights.
Line Up and Shut Up, AM. RIFLEMAN, Jan. 1994, at 32, 33.
137. SUGARMANN, supra note 2, at 143.
138. The NRA's "Refuse to Be a Victim" program operates hand in hand with various gun manufacturers' efforts to target the lucrative and barely- developed women's market. See, e.g., Sixty Minutes: Arms and the Woman (CBS television broadcast, Oct. 10, 1993); see also SUGARMANN, supra note 2, at 147 (quoting Minutes of the Meeting of the Board of Directors of the NRA, Apr. 22-23, 1985: "Another segment of our population which needs more emphasis is women of all ages and avocations. We can easily double or triple our ranks by enlisting millions of women."). Claims that the gun lobby and gun manufacturers have targeted women out of benevolent concern are belied by trade industry publications touting sales to women based on the necessity of "captur[ing] new markets" ¾ particularly one that "represent[s] 53% of America's population." SUGARMANN & RAND, supra note 3, at 19.
139. In response to the slump in handgun sales in the early 1980s, firearms manufacturers developed new lines of powerful, high-capacity, and technically advanced pistols. Many of the new semiautomatic handguns are classified as "assault weapons" because of their "sporterized" features, such as attachable ammunition clips, magazines capable of firing dozens of rounds in a minute, flash suppressors, and threaded barrels for silencers, all designed for less detectable firing ¾ in a duck blind (perhaps) or "in a highly complex society or in a clandestine operation." SUGARMANN & RAND, supra note 3, at 22 (quoting a Claride Hi-Tec, Inc. advertisement). One author has observed:
Pistols, which accounted for only 32 percent of the 2.3 million handguns produced domestically in 1980, had reached 69 percent of the domestic production by 1989. During that time, the old .38 calibers were replaced in popularity by more deadly models, particularly the 9 mm gun ¾ which quickly became the gun of choice "among drug dealers, gangs and television and movie script writers."
SUGARMANN, supra note 2, at 97. These "assault weapons" account for only one-half of one percent of all guns in circulation, but make up 10% of all guns traced to crime. Jim Stewart & Andrew Alexander, Assault Weapons Muscle in on the Front Lines of Crime, COX NEWSPAPERS, May 21, 1990, at 1.
140. Not yet in Webster's, but I offer:
ne·cro·mer·chant (nek'rõ-mûr'chant) n. [NLat. < Gk. nekros, corpse + ME < Or. marcheant < VLat. *mercantans < Lat. mercari, to trade] One whose occupation is the buying and selling of the implements of death for personal profit.
Accord Bob Dylan, Masters of War, on THE FREEWHEELIN' BOB DYLAN (Columbia Records 1963):
Come you masters of war,
You that build all the guns
You put a gun in my hand
And you hide from my eyes
And you turn and run farther
When the fast bullets fly . . . .
You fasten the triggers
For the others to fire
Then you sit back and watch
When the death count gets higher
You hide in your mansion
As young people's blood
Flows out of their bodies
And is buried in the mud . . . .
Let me ask you one question
Is your money that good
Would it buy you forgiveness
Do you think that it could
I think you will find
When your death takes its toll
All the money you made
Will never buy back your soul . . . .
141. See, e.g., Weathers, supra note 9, at 134 (observing that gun manufacturers are turning out weapons in "bright Crayola-crayon colors" and guns designed to be clipped inconspicuously on a belt like a beeper).
142. One gun maker, the FIE Corporation
urged gun owners to 'Take the 'LAW' Into Your Own Hands' with its Franchi LAW- 12 shotgun. Advertisements for the SWD 9mm MAC-11 showcased a '30s gangster holding the gun's presumed antecedent, the Thompson machine gun. The MAC ¾ as "American As God, Mom And Apple Pie"¾ was "The Gun That Made The '80s Roar." In ads for the Street Sweeper ¾ a revolving cylinder riot shotgun ¾ SWD warned, 'It's a Jungle Out There. Make you [sic] streets safe and clean with the help of!'
SUGARMANN, supra note 2, at 204-05. Another manufacturer, Intratec, advertises its assault pistols as offering "a high volume of firepower," a " 'TEC-KOTE' " finish that "provides a natural lubricity . . . [that offers] . . . excellent resistance to finger prints" and being "as tough as your toughest customers." SUGARMANN, supra note 3, at 24 n.38; see also Alix M. Freedman, Behind the Cheap Guns Flooding the Cities is a California Family, WALL ST. J. , Feb. 28, 1992, at A1 (detailing a lucrative family business of manufacturing inexpensive handguns, a favorite weapon for many street criminals).
143. SUGARMANN, supra note 2, at 89 (describing the "blizzard of contests that seem to dominate NRA mailings"); see, e.g., Mailing from National Rifle Ass'n, Great Guns Giveaway, July 1994, at 1 (on file with the Boston University Law Review) ("You're on Your Way to WIN FREE GUNS!").
144. NRA "Round Up", AM. RIFLEMAN, Dec. 1992, at 56, 56. Customers were further assured that they "may also elect to contribute an amount greater than the 'round up' amount." As of August 1992, the round-up program had raised $127,596 for the NRA/ILA Endowment To Protect The Second Amendment. Id.
145. SUGARMANN, supra note 2, at 88 (noting the relationship between the firearms industry and the NRA).
146. See, e.g., Larry Martz, God and Money, NEWSWEEK, Apr. 6, 1987, at 16, 18 (relating stories of greed, lust, and hostile takeovers among televangelists, and noting that "ministries on 221 TV stations now vie for donations that may total anywhere from $1 billion a year to twice that figure"); cf. Cal Thomas, The Challenge for Christians, BUFFALO NEWS, July 12, 1994, at B3 ("Too many preachers tolerate 'sin in the camp' because they are more interested in building big congregations and church construction projects and their next pastoral assignment than they are in preaching the uncompromising and uncomfortable message contained in the Gospel.").
147. Lacayo, supra note 121, at 16; see also Baer et al., supra note 2, at 22 (describing gun owners' fear of political tyranny as "a long-lived political creed, bordering today on theology among some followers, in favor of popular access to arms as a counter to tyranny"); see also Morrison, supra note 132, at 1548 ("Central to the NRA's potency is its evangelical zeal.").
148. Daniel Voll, The Right to Bear Sorrow, ESQUIRE, Mar. 1995, at 75, 80.
149. Morrison, supra note 132, at 1548.
150. Davidson, supra note 112, at 134 -35.
151. Firearms are far more than "mere consumer products," contends one gun control activist. "They're totems. For many they're nothing less than the physical embodiment of freedom." SUGARMANN, supra note 2, at 90 - 91.
152. See, e.g., National Rifle Ass'n, AM. RIFLEMAN, Dec. 1992, at 88, 88 (advertisement) ("As we celebrate the holiday season, let us pause and give thanks for one of God's greatest gifts of all: freedom.").
153. Kathyn Kahler, America's Love and Fear of Guns Turning into a Fatal Attraction, HOUSTON CHRON., Nov. 22, 1992, at A7.
154. These same visions, of course, spur political action and gun purchases. See supra notes 128, 137 and accompanying text.
155. See generally Bogus, supra note 11, at 1365 - 66.
156. Novelist James Jones describes the feeling as follows: "The world was rocketing to hell in a bucket, but if he could only hold onto his pistol, remain in possession of the promise of salvation its beautiful blued-steel bullet-charged weight offered him, he could be saved." JAMES JONES, THE PISTOL 35 (1958).
157. Kahler, supra note 153, at A7; see also Edward Diener & Kenneth W. Kerber, Personality Characteristics of American Gun Owners, 107 J. SOC. PSYCHOL. 227, 228 (1979) ("[A] gun asserts a person's strength and invulnerability." (citations omitted)).
158. Several studies suggest that a gun in the home is more a recipe for family tragedy than personal safety, although the methodology in these surveys is subject to serious challenge. See, e.g., Arthur L. Kellerman et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 NEW ENG. J. MED. 1084, 1084 (1993) (reporting the results of a five-year study of homicides in three metropolitan areas, which that showed that a handgun in the home nearly triples the risk of death for occupants); Arthur L. Kellerman & Donald T. Reay, Protection or Peril? An Analysis of Firearm Related Deaths in the Home, 314 NEW ENG. J. MED. 1557, 1558 (1986) (reporting the results of a five-year study of medical and police reports regarding gunshot deaths in King County, Washington, which revealed that a firearm kept in the home was 18 times more likely to kill a family member than a stranger). But see Wayne LaPierre, Guns Protect the Home, USA TODAY, Oct. 11, 1993, at 12A (challenging Kellerman's study for ignoring the findings of criminologist Gary Kleck that 99.8% of defensive firearm use involves no homicide, and that citizens use firearms for self-protection approximately 1.1 million times per year).
159. Kahler, supra note 153, at A7.
160. Sue Anne Pressley & Keith Harriston, A Crazed Fascination with Guns, WASH. POST, Feb. 2, 1992, at A1, A10. As two teenagers from East Orange, New Jersey once told a reporter, "The people I know who carry guns carry guns because they feel it makes them better than you . . . That gun gives them the respect they don't get from other places." Felicia R. Lee, Where Guns and Lives Are Cheap, N.Y. TIMES, Mar. 21, 1993, at A33. In Lawrence Kasdan's movie, Grand Canyon (20th Century Fox 1991), the tow-truck operator played by Danny Glover tells a young, armed gang member about to mug Kevin Kline: "You don't got the gun, we ain't having this conversation." The gang member replies: "That's what I thought. No gun. No respect. That's why I always got the gun." Jeff Silverman, Romancing the Gun, N.Y. TIMES, June 20, 1993, § 2, at 1, 25 (quoting this dialogue).
161. Russell Baker, Gunning for Respect, N.Y. TIMES , June 4, 1994, at A19 (describing the types of "disrespectful" behavior for which shooting someone is considered just punishment).
162. Would-be Reagan assassin John Hinckley, a white, upper-middle-class product of the privileged suburbs around Dallas, attended one of the best public high schools in the country. Neil Henry & Chip Brown, An Aimless Road to a Place in History, WASH. POST, Apr. 5, 1981, at A1. In his poem, "Guns are Fun," Hinckley noted the "pornographic power" that he could unleash "[w]ith one little squeeze of the trigger . . . [a]ll because I own an inexpensive gun." Hinckley's poem reads in full:
See that living legend over there?
With one little squeeze of the trigger
I can put that person at my feet moaning and groaning and pleading with God.
This gun gives me pornographic power.
If I wish, the President will fall and the world will look at me in disbelief.
All because I own an inexpensive gun.
JERVIS ANDERSON, GUNS IN AMERICA 10 (1984).
The connection between guns and male sexuality is common. "The most celebrated explanation [for the popularity of firearms in the United States] has come from the psychoanalytic tradition in which guns are seen as phallic symbols which represent masculine power. A related explanation emphasizes the feelings of power and virility that a gun bestows on its owner." Diener & Kerber, supra note 157, at 227 (citation omitted).
163. ANDERSON, supra note 162, at 20.
165. Id. at 21.
166. Id. at 22.
167. Thomas Edison (1903).
168. Republic Picture Corp. (1952).
169. As one observer has noted:
[G]uns in movies (and on television) don't surprise us anymore; they just get larger, sleeker, more powerful and more destructive. Cameras caress them from every angle. By size and design they are there to draw attention to themselves. In some cases, they are the stars. They have become more than just characters; they've become sex symbols ¾ for both men and women.
Silverman, supra note 160, at 1.
170. Henry Allen, The Mystique of Guns, WASH. POST, Apr. 19, 1989, at D1:
No other country makes movies and television shows where the guns have such life in themselves. It's an esthetic tradition, a genre: "Winchester '73," "Have Gun Will Travel," "Gunsmoke," "The Left-Handed Gun," "Gunfight at the O.K. Corral," "The Rifleman" . . . . We've named both a movie and a malt liquor after a gun: "Colt 45." The only comparison to the gun in American movies is the sword in samurai movies.
171. SUGARMANN, supra note 2, at 203-04 (" 'The Mac-10,' a criminal purred in the opening of a Miami Vice episode, 'it slices, it dices.' . . . When the futuristic Steyr AUG assault rifle was featured on one episode, gun stores across the country received inquiring calls.").
172. It should be no surprise that the back pages of American Rifleman would carry an ad for a "Special Collector Clint Eastwood Issue" from a movie magazine company, boasting 72 pages and over 50 action photos. Films in Focus, AM. RIFLEMAN, Apr. 1994, at 66, 66 (advertisement).
173. E.g., DEATH WISH (Paramount 1974).
174. The Death Wish star was the natural role model for a subway rider named Bernie Goetz. Goetz was celebrated in the tabloid press and by many gun owners for responding to some African-American youths' somewhat menacing request for $5 by exercising the "right to bear arms." Goetz never saw the screwdrivers hidden in one youth's coat, and said that he knew they did not have a gun, but was sure the teens wanted to "play" with him in a violent way. So Goetz stood and fired four rounds, three of which hit Troy Canty, Barry Allen, and James Ramseur. Although he missed Darryl Cabey the first time, Goetz turned his gun on Cabey again as the boy cowered at the end of the car. The second shot severed Cabey's spinal cord. See generally People v. Goetz, 506 N.Y.S.2d 18 (1986).
175. PolyGram (1993).
176. Warner Bros. (1994).
177. Warner Bros. (1993).
178. David Elliott, Even Sly Fans May Have Trouble Buying into This Hunky Action Film, SAN DIEGO UNION-TRIB. , Oct. 9, 1993, at E5.
179. Warner Bros. (1993).
180. Metro-Goldwyn Mayer (1991).
181. The "industrial metal" band Nine Inch Nails scored a hit with their album The Downward Spiral (Warner Bros./Interscope 1994), featuring a title song that includes the lyrics: "He couldn't believe how easy it was. He put the gun in his face. Bang. So much blood for such a tiny little hole." Id. "Gangsta" rap is loaded with hymns to high-powered firearms, with titles like Rat-Tat-Tat-Tat and Throw Ya Gunz, and choruses like Cypress Hill's "Cock the hammer, it's time for action," CYPRESS HILL, Hand on the Pump, on CYPRESS HILL (Ruffhouse/Columbia 1991), quoted in John Leland, Criminal Records, NEWSWEEK, Nov. 29, 1993, at 59, 60, and Snoop Doggy Dogg's "But watch the gun by my side/Because it represents me and the motherf---in' eastside." SNOOP DOGGY DOGG, GZ and Hustlas, on DOGGY STYLE (Death Row/Interscope 1993), quoted in Leland, supra, at 60. Guns are also prominently featured in songs by rap artists Dr. Dre, Onyx, Spice 1, Nate Dogg, and Warren G. Yumi Wilson, Back Beat of Pain and Anger in Music, SAN. FRAN. CHRON. , May 31, 1994, at E1.
182. The American Psychological Association has estimated that "a child who watches two to four hours of TV daily will have witnessed 8,000 murders and 100,000 other acts of violence by the time he or she leaves elementary school." Joint Hearing of the Constitution Subcomm. and the Juvenile Justice Subcomm. of the Senate Judiciary Comm. on Violence on Television, Federal News Service, June 8, 1993 (testimony of Rep. Charles Schumer), available in LEXIS, News Library, Script File.
183. See, e.g., Howard Kurtz, Murder! Mayhem! Ratings! Tabloid Sensationalism is Thriving on TV News, WASH. POST, July 4, 1993, at A1.
184. Warner Bros. (1987).
185. E.g., FIRST BLOOD (First Blood Assoc. 1982).
186. Orion (1987).
187. Fox (1988).
188. Movie gun violence appears to be reaching new levels of callousness as we near the end of the century. Consider the classic bullet-strewn sequences in movies of the 1960s and 1970s, such as the slow-motion machinegun slaughtering of Bonnie and Clyde (Warner Bros. 1965), and The Godfather (Paramount 1972) sequence near the end of the film juxtaposing the baptism of Michael Corleone's nephew with the systematic termination of the family's enemies. These movies were as bloody as any, but the "pain and damage wrought by violence are intrinsic to these films." The 1990s gun movies like True Romance (Warner Bros. 1993) and Kalifornia (PolyGram 1993) instead seem to be glorifying "an almost cartoonish violence" in which "the motivations for killings are often unclear" and "often, the violence is seen as a lark . . . . [V]iolence inflicted by sexy young renegades in a highly stylized fashion with little or no conflict to show for it." Bernard Weinraub, Despite Clinton, Hollywood Is Still Trading in Violence, N.Y. TIMES, Dec. 28, 1993, at A1.
Reports that Hollywood is looking to clean up its gun-toting act seem to be greatly exaggerated. Several hours after a number of studio executives praised President Clinton's high-profile Hollywood speech "imploring entertainment industry leaders to curb depictions of murder and mayhem in movies and television," those same studio heads "were in a bidding war for a movie script in which 11 people are killed in the first seven pages." Id.
189. Jessica Siegel, Many Viewers Agree TV Violence Is Harmful; But in What Context?, CHI. TRIB., Aug. 8, 1993, at 1C. Television violence appears to have similarly insidious effects. In 1982 the National Institute of Mental Health concluded that "[a]fter 10 years of research, the consensus among most of the research community is that violence on television does lead to aggressive behavior by children and teen-agers who watch the programs." CNN & Company (CNN television broadcast, June 11, 1993) (remarks of Terry Rakolta, founder and director of Americans for Responsible Television) (arguing that children "are experiencing a psychotic numbness" after years of watching endless parades of television gunplay and other mayhem at a rate of 32 acts of violence per hour), available in LEXIS, News Library, CNN File.
190. Pressley & Harriston, supra note 160, at A1.
192. Carol Kirschenbaum, Is It a Bad Rap?, AUSTIN BUS. J. , Mar. 14, 1994, at A1. Shakur himself has been charged with aggravated assault for firing at two police officers. Ronald Smothers, Rapper Charged in Shootings of Off-Duty Officers, N.Y. TIMES, Nov. 2, 1993, at A16.
193. Pressley & Harriston, supra note 160, at A1.
195. Kahler, supra note 153, at A7 ("For many urban kids, getting a gun is as much a rite of passage as it is for a boy growing up on a farm to have a gun of his own."). "[F]or millions of American boys, learning to shoot and above all graduating from toy guns and receiving the first real rifle of their own were milestones of life, veritable rites of passage that certifed their arrival at manhood." Richard Hofstadter, America as a Gun Culture, in THE GUN CONTROL DEBATE, supra note 109, at 25, 29; see also Anderson, supra note 162, at 12 ("A boy who is given a .22 rifle becomes a young man almost overnight . . . . " (quoting the late sociologist Herman Kahn)).
196. A six-year-old Florida kindergarten student recently brought a loaded 9mm Smith and Wesson semiautomatic revolver to school with him, thinking that "the gun was like the ones in the Batman cartoons that shoot 'bat bombs.' " T. Christian Miller, Kindergartener Takes Loaded Revolver to School, ST. PETERSBURG TIMES, May 28, 1994, at 8.
197. On one recent visit to a medium-sized toy store in Manhattan, I located nearly 50 different types of toy guns. The toy industry spent more than $4 million in 1987 to advertise new toy guns, "including water and dye- pellet versions of the Uzi and AK- 47." Vicki Kemper, Biting the Bullet, COMMON CAUSE, Winter 1992, at 16, 20.
198. Ester B. Fein, Violent Playthings: Parents Ponder Choices, N.Y. TIMES, Dec. 23, 1993, at B1.
199. Even educational toys designed to teach reading inculcate the religion of firearms. One such toy that I recently (and mistakenly) purchased for my son teaches children that "A" stands for "apple," "B" stands for "book," and "G", of course, stands for "gun." No "giraffes," "garages," or "girls" here.
200. SUGARMANN, supra note 2, at 147 (quoting Minutes of the Meeting of the Board of Directors of the NRA, Apr. 22-23, 1985, at 90).
201. Gun activists often insist that the real problem with children and guns is not that guns are too easily available to curious kids, but that the youngsters simply have insufficient access to firearms, and not enough training in firearms safety. David B. Kopel, Kids and Guns, AM. RIFLEMAN, Aug. 1993, at 42, 42 (chastising gun control advocates for making legitimate gun use and home education of youthful gun users impossible).
202. Mark A. Keefe, IV, Youth Guns Today, AM. RIFLEMAN, June 1994, at 34, 34.
203. Reports that the 1992-93 school year theme was "Our Friend the AK- 47" were greatly exaggerated. Surprisingly, it was merely: "The Second Amendment to the Constitution: why it is important to our nation." FCRLDF Sponsors Youth Essay Contest, AM. RIFLEMAN, Dec. 1992, at 56, 56. See infra note 360 for a description of a similar contest held for budding attorneys.
204. The practice of "love bombing" was initially attributed to the followers of Rev. Sung Yung Moon's Unification Church. See, e.g., Kenneth Woodward et al., How They Bend Minds, NEWSWEEK, Dec. 4, 1978, at 72, 72.
205. The NRA's membership manual states:
NRA members are Americans in the finest patriotic sense. You believe in the Constitution and uphold its tenets. You believe in fairness, equality and the law. You actively pursue some of this country's oldest and finest traditions, including hunting and recreational shooting. You've worked hard to support law enforcement and fought hard to keep special interest groups from infringing upon our Second Amendment rights.
NATIONAL RIFLE ASS'N, THE NRA MEMEBER GUIDE 3 (1992).
206. In one letter to NRA members, Executive Vice President Wayne LaPierre notes pointedly that:
. NRA families are three times more likely to have members who fought ¾ and even died ¾ for the colors of the flag and ideals of our founding fathers . . . .
. Today, only 47% of the American people are regular churchgoers. But, 78% of NRA members are regular churchgoers . . . .
. The trend in America is toward single parent households ¾ but not among NRA members. But, 82% of our NRA members are married and are raising families . . . .
. [T]he kids of NRA members are the ones graduating from high school and college. That's because their idols aren't suicidal, drugged-up rock stars like Kurt Cobain, or violence-crazed rappers like Ice-T.
Letter from Wayne LaPierre, supra note 118, at 3.
207. See, e.g., Letter from Tanya K. Metaksa, Executive Director, Institute for Legislative Action, to NRA Members 1 (May 20, 1994) (on file with the Boston University Law Review) ("I know, from my conversations with Jim Baker, that you share this unselfish unwavering commitment to preserve your Constituitonal rights.").
208. Advertised in American Rifleman, the inscribed 24 -karat gold- plated "Deluxe Museum Limited Edition Second Amendment Commemorative .44 Magnum" commemorates only part of the Amendment, once again with the initial clause deleted and a capital "T" magically imported. The American Historical Foundation, AM. RIFLEMAN, Feb. 1994, at 3, 3 (advertisement).
209. See, e.g., Gun Owners Win Important Battles at Federal, State Level, AM. RIFLEMAN, Sept. 1993, at 74, 74 (quoting NRA supporter Senator Bob Smith's (R-N.H.) description of a proposal to raise the cost of federal firearms dealers' licenses as "an attack on the Second Amendment designed 'to drive the small dealers out of business' "); see also Stephen P. Halbrook, Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and the United States, 96 W. VA. L. REV. 1, 82 (1993) (one-handgun-per-month law); James J. Baker, War for Your Guns, AM. RIFLEMAN, Sept. 1991, at 36, 36 -39 (firearm registration); Marion P. Hammer, Defend Your Rights, AM. RIFLEMAN, Sept. 1993, at 32, 32 (Brady Bill); Jack Lenzi, Semi-Automatics Constitutionally Protected, AM. RIFLEMAN, Sept. 1989, at 61, 61- 63 (ban on semiautomatic weapons).
210. See supra parts I.B.1-2.
211. The NRA has misinformed its members that "a growing body of . . . case law proves that private ownership of these firearms is constitutionally protected." Christopher C. Little, Communitarianism, Clinton & Congress: A New Threat Emerges for Gun Owners, AM. RIFLEMAN, Oct. 1993, at 30, 31. Despite the fact that courts have explicitly found no constitutional right to bear arms for hunting or self-defense purposes, the NRA assures its members that it will vigorously defend their "right to hunt, shoot and own a gun for self-defense." Letter from Tanya K. Metaksa to NRA Members, supra note 207, at 1. NRA leaders regularly speak of the "constitutional right to keep and bear arms" without mentioning the judiciary's contrary verdict.
212. See, e.g., Wayne LaPierre, Jr., Treating Guns as Cars Won't Work, USA TODAY, Dec. 29, 1993, at 11A (arguing that it is both impracticable and constitutionally impermissible for the government to regulate firearms as stringently as it does motor vehicles).
213. See, e.g., Gardiner, supra note 12, at 89 - 92 (Assistant General Counsel for the NRA (later the ILA Director) ignoring the judicial consensus and misstating Miller); Alan M. Gottlieb, Gun Ownership: A Constitutional Right, 10 N. KY. L. REV. 113, 118 (1982) (Chairman of the "Citizens Committee for the Right to Keep and Bear Arms" offering no discussion of the relevant case law beyond a standard Miller mischaracterization); Halbrook, supra note 209, at 57 & n.231 (gun-rights litigator and activist rejecting the claim that "federal courts [have] 'consistently' supported a 'collective rights' theory,' " and supporting an argument that "some federal courts have recognized the right to be an individual right," by offering out-of-context citations to single sentences from five cases, none of which rejects the essence of the so-called "collective rights" view); Moncure, supra note 56, at 593 (then-Assistant General Counsel of the NRA offering the same limited discussion). See generally infra part III.C. (detailing scholarly treatment in favor of a broad-individual-right view of the Second Amendment).
Some in the pro-gun camp have been slightly more willing to discuss the case law, though none acknowledge the clear judicial consensus rejecting their position. See, e.g., David J. Caplan, Restoring the Balance: The Second Amendment Revisited, 5 FORD. URB. L.J. 31, 57-62 (1976) (gun-rights activist and voluntary counsel to the Federation of Greater New York Rifle & Pistol Clubs, Inc. mischaracterizing Miller's analysis, briefly mentioning one other federal case, and citing two additional federal cases, only for the proposition that "[i]t has been argued that the term 'right of the people' in the second amendment refers exclusively to collective and not individual rights"); Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59, 71 (1989) (then-NRA Deputy General Counsel briefly acknowledging, and then dismissing, the fact that "some courts have ignored . . . [the] command" of Second Amendment); Kates, supra note 12, at 251 & n.202 (gun-rights litigator admitting that "a few state or federal cases" have embraced the "exclusively state's right viewpoint").
214. Lon L. Fuller, American Legal Realism, 82 U. PA. L. REV. 429, 432 (1934) (describing Llewellyn's notion of "legal certainty" in part as "predictability of judicial action"); cf. Oliver W. Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 461 (1897) ("The prophecies of what the court will do in fact, and nothing more pretentious, are what I mean by the law.").
215. The former dean of Harvard Law School and Solicitor General in the Nixon Adminstration has called the right to bear arms the "Phantom Right." Griswold, supra note 33, at C7.
216. A 1992 letter from all six stated:
Of all the arguments advanced by opponents of the Brady bill, surely the most specious is the charge that it would infringe a constitutional right. For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia; it does not guarantee immediate access to guns for private purposes.
Nicholas Katzenbach et al., Letter, It's Time to Pass the Brady Bill, WASH. POST, Oct. 3, 1992, at A21.
217. Burger, a life-long hunter, terms the NRA's Second Amendment rhetoric a "fraud" paid for by the firearms industry:
[O]ne of the frauds ¾ and I use that term advisedly ¾ on the American people, has been the campaign to mislead the public about the Second Amendment. The Second Amendment doesn't guarantee the right to have firearms at all . . . . It's shocking to me that the American people have let themselves be conned . . . by the campaigns that are sponsored and financed by the arms industry and the ammunition industry.
Warren Burger, Press Conference Concerning Introduction of the Public Health and Safety Act of 1992, Federal News Service, June 26, 1992, available in LEXIS, News Library, Wires File. Burger has noted that "very few subjects have been as cluttered and confused by calculated disinformation circulated by special interest groups" as the Second Amendment. Mark H. Overstreet, Warren Burger vs. the Founding Fathers, AM. RIFLEMAN, Feb. 1992, at 53, 53; see also Tony Mauro, Bill of Rights Has Not Been Scuttled, USA TODAY , Dec. 16, 1991, at 13A. ("[T]he National Rifle Association has done one of the most amazing jobs of misrepresenting and misleading the public.").
218. Bork has stated that the Second Amendment operates "to guarantee the right of states to form militia, not for individuals to bear arms." He believes California's assault-weapons ban is, and indeed "probably" all state gun control measures are, constitutional. Claudia Luther, Bork Says State Gun Laws Constitutional, L.A. TIMES, Mar. 15, 1989, at B5; see also Miriam Bensimhorn, The Advocates: Point and Counterpoint, Laurence Tribe and Robert Bork Debate the Framers' Spacious Terms, LIFE, Fall 1991 (Special Issue), at 96, 98 ("[T]he National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is people's right to bear arms in a militia. The NRA thinks that it protects their right to have Teflon-coated bullets. But that's not the original understanding.").
219. See RONALD DWORKIN, LAW'S EMPIRE 225 -26 (1986) (describing "law as integrity" as the exercise of interpretive judgment within the framework of the "unfolding political narrative," in contrast to the two extremes of a reactionary conventionalism and a pragmatism divorced from tradition). The broad view of the Second Amendment is simply inconsistent with the previous chapters of consistent case law adopting a narrow view of the right to bear arms. See id. at 230 -31 (using as a metaphor for judicial development of the law the "chain novel," a literary exercise in which a group of writers compose a work collectively, each building a chapter on the foundation of the previously-written chapters; those who ignore the general line of the work's development violate the spirit of the enterprise).
220. See, e.g., MARY ANN GLENDON, RIGHTS TALK 2 (1991) ("[T]he real constitution of the State is composed 'of morality, of custom, above all of public opinion.' " (quoting JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT)).
221. Diemer, supra note 108, at 1A.
222. See Lacayo, supra note 121, at 19 -20 (reporting dissension within the NRA).
223. As Nietzsche observed, truth consists of a "moving army of metaphors, metonymies and anthropomorphisms ... rhetorically sublimated, transposed and beautified until, after long and repeated use, a people considers then as solid, canonical and unavoidable. Truths are illusions whose illusory nature has been forgotten." FREDERICK NIETZSCHE, On Truth and Lie, in THE PORTABLE NIETZSCHE 46-47 (Walter Kaufman ed. & trans., 1982).
224. Bob Baker, The Times Poll: Nation Divided on What Law Should Allow, L.A. TIMES, Dec. 14, 1991, at A28.
225. A Hearst poll conducted in the mid-1980s found that half of those surveyed believed that the Constitution guaranteed their right to own a handgun. Kristen Rand, No Right to Keep and Bear Arms, Appendix to SUGARMANN, supra note 2, at 265. A 1978 national poll asked: "Do you believe the Constitution of the United States gives you the right to keep and bear arms?" 87% of respondents felt they were guaranteed such a right. Kates, supra note 12, at 207 n.11 (citing DECISION MAKING INFORMATION, ATTITUDES OF THE AMERICAN ELECTORATE TOWARD GUN CONTROL (1978) (mimeo)). In a 1975 survey, 70% of those responding said the Second Amendment "applies to each individual citizen [rather than] only to the National Guard." Id. (citing 121 CONG. REC. 42,109, 42,112 (1975) (statement of Sen. McClure, inserting results of the 1975 survey)).
226. Several years ago, I was so moved by one NRA television commercial that I placed an immediate call to the NRA's membership hot-line and spoke to a "Catherine," who said that she was getting paid to take membership information and that she was an NRA member. I asked Catherine if she could tell me (for my research) what the Second Amendment says. She said that she did not know, and put me on hold to go look for the text. When she got back on the phone a few moments later, Catherine said that she was "not provided with that information." Disappointed but undaunted, I proceeded to redial five times and spoke to five more persons at the same number, all but one of whom said they were NRA members, and not one of whom had any idea what words might be contained in the Second Amendment.
227. Rand, supra note 225, at 265.
228. 138 CONG. REC. H1168 - 69 (daily ed. Mar. 11, 1992) (statement of Rep. Owens).
229. Former Handgun Control, Inc. President Pete Shields once testified on Capitol Hill that he firmly believed "in the right of law-abiding citizens to possess handguns . . . for legitimate purposes." SUGARMANN, supra note 2, at 257. Handgun Control, Inc. President Richard Aborn has said that "[t]here are many legitimate people in society who have every right to possess a gun and will never harm anyone." Kahler, supra note 153, at A7; see also Osha Gray Davidson, Get the Facts on Gun Deaths, N.Y. TIMES, July 31, 1993, at A21 (objecting to "useless and often counterproductive limits on the right to bear arms").
230. Kates, supra note 12, at 206 (emphasis added).
231. The gun lobby is not alone in propagating the constitutional confusion. Secondary school students receive inaccurate Second Amendment stories not only from the NRA's propagandists, but from officially approved history and civics textbooks. A survey, conducted by the Center to Prevent Handgun Violence, of forty leading secondary school texts showed that virtually all gave only cursory attention to the Second Amendment and that one-half "ignore the unanimous decisions of the courts in their two to three sentence explanation of the Second Amendment." JUDITH BONDERMAN, TEACHING THE BILL OF RIGHTS: THE CASE OF THE SECOND AMENDMENT/A CRITIQUE OF EXISTING EDUCATIONAL MATERIALS AND SUGGESTIONS FOR CHANGE 1 (1991) ("Whether intentionally or not, these textbooks are endorsing a particular political view of the Second Amendment, rather than providing the necessary background for an informed political discussion of gun control."). One text cited in the survey declares that "[t]he Second Amendment to the Constitution guarantees Americans the right to bear arms. The government cannot forbid Americans to own weapons, such as handguns and rifles." WILLIAM H. HARTLEY & WILLIAM S. VINCENT, AMERICAN CIVICS 79 (Const. ed. 1987), quoted in BONDERMAN, supra, at 5.
232. RRONALD DWORKIN, TAKING RIGHTS SERIOUSLY at xi (1977) ("Individual rights are political trumps held by individuals.").
233. The NRA's chief lobbyist, Tanya K. Metaksa, captured the spirit nicely in rejecting the suggestion that certain semiautomatic "assault-type" weapons should be banned because citizens have no "need for . . . weapons whose only purpose . . . is to kill many people at once." Intoning the obstructionist party line, Metaksa replied, "It isn't a question of need, it's a question of right." Katherine Q. Seelye, Bill to Ban Some Assault Guns Seems Headed for House Defeat, N.Y. TIMES, May 4, 1994, at A1, A21. Ms. Metaksa often introduces herself by noting that her name is spelled "AK, as in AK- 47, and SA, as in semi automatic." Smyth, supra note 113, at 28. In the same vein, longtime NRA patriarch Harlon Bronson Carter, when asked if he would "rather allow those convicted violent felons, mentally deranged people, violently addicted to narcotics people to have guns, rather than to have the screening process for the honest people like yourselves?," responded that such a sacrifice was "a price we pay for freedom." SUGARMANN, supra note 2, at 45.
The NRA has enthusiastically quoted Sanford Levinson's similar defense of the Second Amendment: " '[T]o take rights seriously ... [means] that one will honor them even when there is significant social cost in doing so.' " Little, supra note 211, at 30 (quoting Levinson, supra note 12, at 658). Levinson, in turn, is paraphrasing Dworkin's basic premise: "If someone has a right to something, then it is wrong for the government to deny it to him even though it would be in the general interest to do so." DWORKIN, supra note 232, at 269.
234. GLENDON, supra note 220, at 171. As Glendon has persuasively argued, the American obsession with rights has undermined our national capacity to engage in effective politics:
Our rights-laden public discourse easily accomodates the economic, the immediate, and the personal dimensions of a problem, while it regularly neglects the moral, the long-term, and the social implications . . . . Rights talk in its current form has been the thin end of a wedge that is turning American political discourse into a parody of itself and challenging the very notion that politics can be conducted through reasoned discussion and compromise. For the new rhetoric of rights is less about human dignity and freedom than about insistent, unending desires. Its legitimation of individual and group egoism is in flat opposition to the great purposes set forth in the Preamble to the Constitution: "to form a more perfect Union, establish Justice, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."
Id. at 171-72.
235. As original Brady Bill sponsor Representative Edward Feighan (D-Ohio) noted several years ago: "We've had to invest an enormous amount of political capital in order to get to this point of near passage, of a very moderate, common-sense bill like the Brady bill." SUGARMANN, supra note 2, at 261.
236. Seelye, supra note 125, at 7 (reporting that the NRA's chief lobbyist felt assured that the Republicans would seek repeal of the assault weapons ban, even if not immediately).
237. Katzenbach et al., supra note 216, at A21. According to the Los Angeles Times, "The Second Amendment has created a significant political impediment to the passage of stronger gun control laws. Gun-ownership advocates argue not that Congress should not, as a matter of policy, enact such laws but rather that Congress cannot do so because the amendment ties its hands." Taming the Gun Monster: Is It Constitutional, L.A. TIMES, Nov. 1, 1993, at B6; see also Rand, supra note 225, at 256; cf. Henigan, supra note 11, at 107 ("An enduring feature of the contemporary debate over gun control is the effort to give the debate a constitutional dimension."); Michael Isikoff, NRA Pushes Machine Gun Ownership, WASH. POST, Dec. 28, 1990, at A17 ("With the rising tide of gun-using violence nationwide, considerable debate has arisen over whether the amendment's language protects individual owners of all firearms or if it was intended mainly to protect the weapons of state militias."); Tony Mauro, Second Amendment: Relevant or Just a Relic?, USA TODAY, Dec. 29, 1993, at 2A ("Nobody knows quite what it means. But the Second Amendment, ungrammatical and ambiguous, still looms large in the national debate over guns.").
238. Id., supra note 102, at 6.
239. Feller & Gotting, supra note 11, at 46 n.3.
240. H.R.J. Res. 438, 102d Cong., 2d Sess. (1992).
241. 138 CONG. REC. H1168 - 69 (daily ed. Mar. 11, 1992) (statement of Rep. Owens).
242. Van Alstyne, supra note 12, at 1250 (arguing that it is incumbent on those who are so opposed to the right to bear arms "to seek a repeal of this amendment (and so the repeal of its guarantee)").
243. See, e.g., George Will, The Embarassing Second Amendment, NEWSDAY, Mar. 21, 1991, at 118 (arguing that "gun control advocates who want to square their policy preferences with the Constitution should squarely face the need to deconstitutionalize the subject by repealing the embarassing amendment"); see also Bob Greene, A Gun-Free Nation ¾ Just Think About It, CHI. TRIB., Aug. 23, 1993, § 5, at 1 ("Maybe it is finally time to think about repealing the 2nd Amendment . . . . ").
244. See supra part I.B; see also Richard Berke, Expensive Lobbying Pays Off for Rifle Association, N.Y. TIMES, Sept. 22, 1988, at A32 (detailing the effectiveness of NRA donations and lobbying efforts in derailing a proposed seven-day handgun waiting period).
245. Ann Devroy, President Rebukes Rifle Association, WASH. POST, Mar. 2, 1993, at A9.
246. A Domestic Disarmament Plan, CHI. TRIB., June 21, 1992, at 2. A journalist describes the NRA as "the country's contemporary Murder, Inc. intimidating Congress to protect the rights of children and adults to kill one another. There are no controversial hit songs about the gun lobby, but it kills more minority kids in a month than the police do in five years." Jon Katz, Cop Killers? The Media Target the Police, ROLLING STONE, Jan. 21, 1993, at 30, 31 (discussing the NRA's role in increasing the availability of guns).
247. Janet Reno, What We Must Do to Fight Crime, ORLANDO SENTINEL, Oct. 31, 1993, at G1.
248. Annually, firearms injuries drain more than $1.6 billion in direct costs annually from the health-care system, and another $14.5 billion in yearly wage losses. Taxpayers pick up an estimated 85% of the health-care bill. Tony Freemantle, New Arguments Are Finding Their Targets as Effort to Limit Arms, Ammo Gains Momentum, HOUSTON CHRON., Dec. 5, 1993, at A1.
249. Representative Schumer suggests that "[c]riminals, terrorists, fanatics and unstable people might begin each day by giving thanks to the NRA" for the following measures the gun lobby has pushed through Congress:
• preventing ATF from computerizing or unifying gun-ownership records to trace weapons used in crimes, with the result that police must send officers to all gun shops in a jurisdiction to check records manually, rather than using the same types of computer records used to investigate stolen cars.
• enabling citizens to purchase machine guns manufactured prior to 1986 ¾ in the Firearms Owners Protection Act (McClure Volkmer Act) of 1986.
• requiring ATF to process applications from felons seeking to waive federal prohibtion on their ownership of guns, at a cost in 1992 of $3.5 million.
• prohibiting ATF from researching the use of taggants as a device for tracing explosives ¾ [because the same technology could be used to trace bullets ¾ and their purchasers.
• forcing ATF to provide licenses to federal firearms dealer applicants within 45 days, even if the necessary background check can not be completed, resulting in licenses awarded to "dogs and dead men."
• undermining ATF's ability to investigate and prosecute corrupt or suspected gun dealers by reducing illegal gun sales to felons from a felony to a misdemeanor and then prohibiting ATF from inspecting any dealer more than once a year.
Charles E. Schumer, The Gun Lobby Is on the Run, N.Y. TIMES, April 4, 1993, § 4 (Week in Review), at 15.
250. In March of 1963, using the alias of "A. Hidell," Oswald purchased the Mannlicher-Carcano Italian-army-surplus rifle by mailing in $21.45 to Klein's Sporting Goods in Chicago, along with a coupon he found in an ad in the back pages of the NRA's American Rifleman. The gun came to Oswald via parcel post that month. DAVIDSON, supra note 112, at 30. The NRA also helped develop the high-powered ammunition that made that "notoriously inaccurate" rifle more effective. SUGARMANN, supra note 2, at 35.
251. Hazel Whitman, Death Sentence for School Killer, SAN. FRAN. CHRON. , Sept. 18, 1993, at D16 (detailing Houston's murder spree).
252. The gun lobby's successful linking of gun ownership as pure patriotism to their "Armageddon Appeals" of imminent gun confiscation has been a double-edged sword. While proving to be
a powerful rhetorical device for recruiting new members and activating present ones[,] such techniques also created problems for the lobby. It produced a climate of pseudo-patriotic paranoia that easily gets out of hand, leading to the kinds of vicious attacks on opponents that hurt the lobby's credibility and result in a backlash. In addition, such rhetoric may have been well suited to the Cold War era and to the neo-Cold War period that occasioned the early years of the Reagan presidency ¾ not coincidentally, the time of the NRA's greatest growth ¾ but an organization that still red-baits its opposition after the collapse of communism appears foolish and not a little delusional. DAVIDSON, supra note 112, at 157.
253. Mental Tests Ordered for Threat Suspect, UPI, July 21, 1994, available in LEXIS, News Library, UPI File. Walling, who used the name of his dead brother to puchase dozens of firearms in the months leading up to his July 16 arrest, had stockpiled 40 guns and thousands of rounds of ammunition in his van and his home. Id.
254. See, e.g., Congressman Reports Threats After Vote, N.Y. TIMES, May 11, 1994, at A16 (stating that Rep. Dick Swett (D-N.H.) reported receiving death threats after voting for a bill that would ban sales of several assault-type weapons). Similarly, one Senate aide remarked:
I have never gotten so many vituperative calls on any issue that we've ever dealt with as with the gun issue. Violent, violent calls. People calling up threatening me, threatening the senator. Death threats. All that crap. The one thing you learn about this issue is that the most active people for gun rights are also the most violent people, the people you don't want to have guns. DAVIDSON, supra note 112, at 65. See generally Jim Stewart & Andrew Alexander, Assault Gun Foes Targeted, COX NEWSPAPERS, June 18, 1990, at 8.
255. See, e.g., David Johnston, Psychiatric Exam Ordered in White House Shooting, N.Y. TIMES, Nov. 1, 1994, at A18. The New York Times described Duran as a dishonorably discharged Army medic who may have been "drawn to the ultraconservative, citizen militia movements that have sprung up in several Western states." Id. Duran's lawyer says that his client had no intention of killing President Clinton, but rather was filled with hatred for government and "shot at a . . . powerful symbol of our country." Michael Janofsky, Man Accused to Trying to Kill Clinton Begins Insanity Defense , N.Y. TIMES, Mar. 21, 1995, at A15.
256. Paul Blackman, Violence in America: Time to Bite the Bullet Back, 268 JAMA 3069 (1992); see also Kopel, supra note 201, at 44 ("Myth: 'Guns are the leading cause of death among older teenagers ¾ white and black ¾ in America.' . . . Truth: True for black males, but not for females or for males of other races.").
Of course, the NRA is hardly alone in its not-so-subtle devaluation of the lives of poor persons of color. Reflecting and reenforcing the limited empathic capabilities of its readers and viewers, the print and electronic media routinely downplay the significance of shootings in "bad" neighborhoods, quietly burying stories of Latina babies in the Bronx killed by stray bullets and black residents of Jefferson County, Florida, gunned down in their own neighborhoods. Meanwhile, violent robberies outside of high-priced Manhattan jewelry stores and slayings of West European and Canadian tourists in Florida merit screaming headlines for weeks on end. See JACQELINE JONES, THE DISPOSSESSED: AMERICA'S UNDERCLASSES FROM THE CIVIL WAR TO THE PRESENT 282 (1992) (remarking that black criminals receive significant media attention when they attack affluent whites, while daily gun deaths among inner city poor persons of color receive almost no coverage).
257. See supra note 8.
258. See SUGARMANN, supra note 2, at 159 ("None of the NRA's leadership is black, and its board is almost uniformly white. In looking at its annual report the number of black faces can be counted on one hand; often they appear to be clerical employees."); see also Smyth, supra note 113, at 26 (describing an NRA convention as collection of mostly "beefy white men").
259. Bogus, supra note 11, at 1365 - 66.
260. Smyth, supra note 113, at 31.
261. SUGARMANN, supra note 2, at 101 (describing NRA board member Neal Knox's publication Shotgun News).
262. President's Remarks on Signing the Brady Bill, 29 WEEKLY COMP. PRES. DOC. 2477, 2478 (Nov. 30, 1993).
263. Reno, supra note 247, at G1; see also supra notes 3 -10 and accompanying text (collecting statistics).
264. See President's Remarks on Signing the Brady Bill, supra note 262, at 2478 (suggesting that there is a right to bear arms).
265. In its first year of operation, the Brady Law stopped as many as 45,000 felons from purchasing handguns. Fox Butterfield, Handgun Law Deters Felons, Studies Show, N.Y. TIMES, Mar. 13, 1995, at A16.
266. Thomas L. Friedman, Clinton Signs Bill on Guns into Law, N.Y. TIMES, Dec. 1, 1993, at A20.
267. See, e.g., David K. Barnhizer, Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America, 50 U. PITT. L. REV. 127, 151 (1988).
268. Daniel Abrams, What 'Right to Bear Arms?', N.Y. TIMES, July 20, 1989, at A23. The author said that "American lawyers should be ashamed of their inability to transmit [the judicial consensus rejecting the gun lobby's interpretation of the Second Amendment] to the public." Id.
269. See, e.g., Kent Greenawalt, Free Speech Justifications, 89 COLUMN. REV. 119, 145 - 46 (1989).
270. DENNIS F. THOMPSON, POLITICAL ETHICS AND PUBLIC OFFICE 3 (1987) ( "Whatever its other elements, an adequate conception of democracy should include, as a necessary condition, collective deliberation on disputes about fundamental values."); cf. STEPHEN MACEDO, LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL CONSTITUTIONALISM 40-41 (1990) (contending that the "moral core" of a liberal political order "is a commitment to public justification: the application of power should be accompanied with reasons that all reasonable people should be able to accept").
271. Such indicia of public opinion have become powerful directives for government action, as politicians at all levels of government increasingly take the electorate's pulse and guide their decisions based, in large part, on the public mood. See, e.g., David Shribman, Leadership by the Numbers, BOSTON GLOBE, May 29, 1994, at 67 ("Washington has a lot of polls and is exercising very little leadership."). For better or worse, if that public opinion is to be a significant guide in political decisionmaking, we would hope that such opinion is well-informed. See, e.g., Hans Speier, The Rise of Public Opinion, in The Truth in Hell and Other Essays on Politics and Culture THE TRUTH IN HELL AND OTHER ESSAYS ON POLITICS AND CULTURE 1935 -1987, at 143, 144 (1989) ("[F]or public opinion to function, there must be access to information on the issues with which public opinion is concerned.").
272. Paul Brest, Constitutional Citizenship, 34 CLEV. ST. L. REV. 175, 185 (1985 - 86) ("[P]articipation, so far as the majority is concerned, is participation in the choice of decision makers." (internal quotation marks omitted) (quoting CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 14 (1970))).
273. JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES 25-28, 37-43, 57-64 (1984) (stating that elected public officials play a central role in setting the nation's political agenda, while media and academics, among others, have the role of formulating and debating policy alternatives, i.e., setting and contemplating parameters).
274. GLENDON, supra note 220, at 104. Glendon admonishes judges in the same fashion. Id.
275. Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 STAN. L. REV. 585, 587 (1975) (stating that legislators have a duty to "determine, as best they can, the constitutionality of proposed legislation").
276. See, e.g., Janey E. Ainsworth, Interpreting Sacred Texts: Preliminary Reflections on Constitutional Discourse in China, 43 HASTINGS L.J. 273, 282 & n.35 (1992) (collecting sources and discussing the analogy between the Constitution and the Bible). Ainsworth notes that "[m]any American scholars have drawn parallels between the place of scripture in our religious tradition and the role of the U.S. Constitution in the American political culture." Id. at 281- 82.
277. MACEDO, supra note 270, at 75.
278. See Brest, supra note 272, at 183 (stating that Congress lacks "strong traditions of constitutional decisionmaking" and has "a widespread tendency to leave controversial questions to the courts").
279. Brest argues that
the Constitution does not appear to assign a privileged, let alone an exclusive, role to the judiciary. On the contrary, it implies that all legislators and public officials, both state and federal, are obligated to interpret the Constitution. In other words, paradoxical as it may seem, legislatures must act not only in a legislative mode, but in a constitutional mode as well. They must determine whether proposed legislation is permitted by the Constitution.
Id. at 180.
280. Id. at 184. It is an unhealthy condition for constitutional citizenship in a democracy for 64% of Americans to believe that the Constitution establishes English as the national language and for 49% to believe that the President has the power to suspend that Constitution. Arthur M. Schlesinger, The Constitution and Presidential Leadership, 47 MD. L. REV. 54, 54 (1987) (noting that "nearly half" of people believe that the Constitution contains the phrase "from each according to his ability, to each according to his need" and 70% believe the Constitution states "all men are created equal"); see also Marcia Coyle, Poll Shows Many Americans Lack Knowledge of High Court, N.Y. L.J. , Feb. 20, 1990, at 2 (reporting that only 23% of survey respondents know the correct number of Supreme Court Justices and 51% believe that the right to privacy is stated explicitly in Constititution); Amy Goldstein, College Seniors Fall Short on Humanities Questions, WASH. POST, Oct. 9, 1989, at A4 (reporting that two-thirds of college seniors believe that the concluding lines of Lincoln's Gettysburg address are part of the Constitution).
281. GLENDON, supra note 220, at 179.
282. Pub. L. No. 99 -308, 100 Stat. 449 (1986) (codified as amended at 18 U.S.C.A. ss 921- 929 (West 1976 & Supps. 1994 & Nov. 1994)). Also known as the McClure-Volkmer Act, this NRA-drafted legislation represented an astounding rollback of the nation's already feeble gun control policy. The Act: (1) ended the 1968 Gun Control Act's ban on interstate sale of all firearms other than handguns ¾ regardless of local law on the subject (preliminary versions also gave the green light to interstate handgun sales); (2) resumed mail-order sales of ammunition; (3) removed record-keeping requirements for ammunition dealers; (4) narrowly confined the scope of potential ATF enforcement (including a prohibition on ATF centralization of dealer records and a restriction on the inspection of dealer records ¾ while reducing penalties for dealer violations); (5) required a higher standard of proof to convict renegade dealers; and (6) permitted individuals who had been convicted of felonies involving a gun, who had violated provisions of the 1968 Act, or who had been involuntarily committed to mental institutions, to apply to the ATF for "relief" from the "disability" of not being able to own a gun. SUGARMANN, supra note 2, at 187- 91.
This last provision of McClure-Volkmer has given relief to drug dealers and terrorists. Id. One beneficiary of the law is gun-rights extremist and income-tax evader Alan Gottlieb, who heads the Citizens Committee for the Right to Keep and Bear Arms and created the Second Amendment Foundation. Id. at 116.
283. McClure-Volkmer Act, § 1(b), 100 Stat. at 449 (codified as amended at 18 U.S.C.A. § 921 (West 1976 & Supp. Nov. 1994)).
284. THE RIGHT TO KEEP AND BEAR ARMS, supra note 50.
285. Id. at viii.
286. 137 CONG. REC. H2852 (daily ed. May 8, 1991) (statement of Rep. Rohrbacher).
287. 140 CONG. REC. H3059 (daily ed. May 5, 1994) (statement of Rep. Hutto).
288. See, e.g., 139 CONG. REC. S16,315 (daily ed. Nov. 19, 1993) (statement of Sen. Stevens); 139 CONG. REC. S16,309-10 (daily ed. Nov. 19, 1993) (statement of Sen. Dole); 139 CONG. REC. S15,507- 08 (daily ed. Nov. 10, 1993) (statement of Sen. Baucus); 139 CONG. REC. S15,451-52 (daily ed. Nov. 9, 1993) (statement of Sen. Boren); 137 CONG. REC. S9079 - 80 (daily ed., June 28, 1991) (statement of Sen. Thurmond); 137 CONG. REC. H2872 (daily ed. May 8, 1991) (statement of Rep. Stallings); 137 CONG. REC. H2868 (daily ed. May 8, 1991) (statement of Rep. Stump); 137 CONG. REC. H2866 (daily ed. May 8, 1991) (statement of Rep. Slattery); 137 CONG. REC. H2863 (daily ed. May 8, 1991) (statement of Rep. Armey); 137 CONG. REC. H2852 (daily ed. May 8, 1991) (statement of Rep. Rohrabacher); 137 CONG. REC. 1697- 98 (daily ed. May 9, 1991) (statement of Rep. Orton); 136 CONG. REC. S6748 -50 (daily ed. May 22, 1990) (statement of Sen. Heflin); 136 CONG. REC. S6751 (daily ed. May 22, 1990) (statement of Sen. Kassebaum); 136 CONG. REC. S6752 (daily ed. May 22, 1990) (statement of Sen. McClure); 135 CONG. REC. S333 -37 (daily ed. Jan. 25, 1989) (statement of Sen. Symms).
289. ABC News/"Time" Forum, supra note 128.
290. 139 CONG. REC. S16,319 (daily ed. Nov. 19, 1993) (statement of Sen. Murray).
291. Only a few legislators have taken the time to correct the constitutional confusion. See, e.g., 139 CONG. REC. S15,440 (daily ed. Nov. 9, 1993) (statement of Sen. Danforth); 139 CONG. REC. S15,442 (daily ed. Nov. 9, 1993) (statement of Sen. Chafee); 139 CONG. REC. S15,443 (daily ed. Nov. 9, 1993) (statement of Sen. Simon); 137 CONG. REC. H2837 (daily ed. May 9, 1991) (statement of Rep. Roukema); 137 CONG. REC. H2844-45 (daily ed. May 8, 1991) (statement of Rep. Campbell).
292. Paul Bedard, Clinton a Boon to NRA, WASH. TIMES, July 6, 1993, at A1 (discussing an NRA membership letter).
293. George Bush wrote an open letter to NRA members during the 1988 presidential campaign, noting his status (like Ronald Reagan's) as a Life Member of the NRA and stating, "I've owned, used and respected firearms for most of my life . . . .You can support my opponent and give up the rights you cherish, or you can support me and maintain your right to keep and bear arms." DAVIDSON, supra note 112, at 142.
Ronald Reagan spoke to the 1983 NRA convention and praised the group for "not backing down 'one inch from defending the constitutional freedoms that are every American's birthright.' " Drop Those Guns; Pro-Gun Lobbying by the National Rifle Association, 239 NATION 573, 573 (1984). In 1984, Reagan told shooting editor Grits Greshham of Sports Afield magazine that "[m]y position has always been clear. I believe that law-abiding citizens have a right to bear arms." Reagan on Guns, UPI, Feb. 3, 1984, available in LEXIS, News Library, UPI File. The 1984 Republican platform declared that "Republicans will continue to defend the constitutional right to keep and bear arms." General News, UPI, Aug. 21, 1984, available in LEXIS, News Library, UPI File. Even in announcing his late-coming support for the waiting period bill named after his former press secretary, Reagan reminded his audience that he was an NRA member and that his "position on the right to bear arms is well known." The MacNeil/Lehrer NewsHour (PBS television broadcast, Mar. 28, 1991), available in LEXIS, News Library, Script File.
In 1976 Gerald Ford promised the NRA that, if elected, he would "oppose any attempt to deprive law-abiding citizens of their traditional freedom to own firearms." DAVIDSON, supra note 112, at 40. Although Jimmy Carter ran on a platform that called for federal action to control the manufacture, sale, and possession of handguns, and had said that he would personally support registration of, and a national waiting period for, the purchase of handguns, a 1976 press release of his stated that he sought to "protect the rights of the 'vast majority of hunters and other gun sportsmen [who] use their firearms respectfully and responsibly.' " Id.
294. See supra notes 262-64 and accompanying text.
295. During the second debate of the 1992 presidential campaign, Clinton said: "I support the right to keep and bear arms . . . . [B]ut I believe we have to have some way of checking before handguns are sold. I support the Brady Bill." Best Quotes from the Presidential Debates, Gannett News Service, Oct. 20, 1992, available in LEXIS, News Library, Wires File; see also Remarks on Legislation to Ban Assault Weapons, 30 WEEKLY COMP. PRES. DOC. 957 (1994) ("I would never do anything to infringe on the rights of sportsmen and women in this country."); Clinton Campaigns for Weapons Ban in Letter to Hunters, N.Y. TIMES, May 1, 1994, at A27 (reporting that an open letter to hunters urged passage of a proposed ban on 19 semiautomatic assault-style weapons, and offered assurances that the President, who has been a hunter since age 12, would "not allow the rights of hunters and sportsmen to be infringed upon").
296. See supra notes 128 -29 and accompanying text.
297. President Clinton, raised in Arkansas and steeped in the classic rural gun rituals, may present a special case of this phenomenon.
298. John A. Farrell, Clinton Seeks a Covenant, BOSTON GLOBE, Jan. 25, 1995, at 1.
299. MACEDO, supra note 270, at 50 -51.
300. Macedo notes that "[l]iberals have a tendency to minimize what they stand for and to evade their ultimate commitments." Id. at 50. This reticence "grows out of a desire for widespread agreement, but also flirts with a kind of liberal false consciousness." Id. at 51. He charges that "[t]he embrace of liberal false consciousness is moved not by principled respect or a desire to live by public reasons but by fear of conflict and despair at the incapacity for reasonableness." Id. at 67. President Clinton may be specially subject to this phenomenon. The President's failure to speak out seems to fit with his widely noted tendency to seek consensus at all costs. See, e.g., Aaron Epstein & Owen Ullman, Clinton Choices Display His Zeal for Consensus, MIAMI HERALD, Dec. 26, 1992, at A12 (discussing Clinton's appointments to fill government posts).
301. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (holding that the First Amendment protects defamatory speech by the press against public officials in the absence of actual malice); Roth v. United States, 354 U.S. 476, 484 (1957) ("The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.").
Political participation is only the most widely cited of many values asserted as central to the First Amendment. Compare, e.g., C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 47-51 (1989) (liberty or self-realization value) with LEE C. BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST AMENDMENT, DEMOCRACY AND ROMANCE (1986) (tolerance value) with STEPHEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY AND ROMANCE (1991) (dissent value). See generally THOMAS I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT (1966) (describing the alternative theories).
302. William T. Coleman, Jr., A Free Press: The Need to Ensure an Unfettered Check on Democratic Government Between Elections, 59 TUL. L. REV. 243, 252 (1984) (emphasis added).
304. Id. at 244, 252.
305. SOCIETY OF PROFESSIONAL JOURNALISTS, CODE OF ETHICS art. 1 (1987) [hereinafter JOURNALISTS' CODE OF ETHICS], reprinted in CODES OF PROFESSIONAL RESPONSIBILITY 175, 175 (Rena A. Gorlin ed., 3d ed. 1994); see also AMERICAN SOC'Y OF NEWSPAPER EDITORS, A STATEMENT OF PRINCIPLES art. 1 (1975) [hereinafter EDITORS' STATEMENT OF PRINCIPLES] ("The primary purpose of gathering and distributing news and opinion is to serve the general welfare by informing the people and enabling them to make judgements on the issues of the time."), reprinted in CODES OF PROFESSIONAL RESPONSIBILITY, supra, at 171, 171.
306. JOURNALISTS' CODE OF ETHICS, supra note 305, art. 4, § 3, reprinted in CODES OF PROFESSIONAL RESPONSIBILITY, supra note 305, at 176. The Journalists' Code also states:
[T]he duty of journalists is to serve the truth.
We BELIEVE the agencies of mass communication are carriers of public discussion and information, acting on their Constitutional mandate and freedom to learn and report the facts.
We BELIEVE in public enlightenment as the forerunner of justice . . . .
We BELIEVE those responsibilities carry obligations that require journalists to perform with intelligence, objectivity, accuracy, and fairness.
Id. pmbl., reprinted in CODES OF PROFESSIONAL RESPONSIBILITY, supra note 305, at 175; see also EDITORS' STATEMENT OF PRINCIPLES art. 4, supra note 305 ("Good faith with the reader is the foundation of good journalism. Every effort must be made to assure that the news content is accurate, free from bias and in context, and that all sides are presented fairly."), reprinted in CODES OF PROFESSIONAL RESPONSIBILITY, supra note 305, at 171.
307. Saxbe v. Washington Post Co., 417 U.S. 843, 863 (1973) (Powell, J., dissenting).
308. NEWSPAPER ASS'N AM., FACTS ABOUT NEWSPAPERS 1994 , at 2, 21 (1994); see also COLEMAN, supra note 302, at 244 ("[N]o medium is more important to the dialogue between a literate public and its government than the daily newspaper.").
309. Telephone Conversation with National Ass'n Broadcasters Library, Aug. 10, 1994; see also Shurberg Broadcasting, Inc. v. FCC, 876 F.2d 902, 943 (D.C. Cir. 1989) (Wald, C.J., dissenting) ("For good or ill, a large portion of the American polity relies upon the broadcast media as a principal source of information about the world in which they live.").
310. See First Nat'l Bank v. Bellotti, 435 U.S. 765, 781 (1978) ("The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate.").
311. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975) ( "Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.").
312. BEN H. BAGDIKIAN, THE MEDIA MONOPOLY at xx (1987).
313. Robert Kasten, Preface to THE DIVERSITY PRINCIPLE: FRIEND OR FOE OF THE FIRST AMENDMENT at xi (Craig R. Smith ed., 1989).
314. Various print and broadcast media outlets have refused to run several different NRA advertisements, including its classic "I'm the NRA" campaign. ILA alerts frequently bash the media for its unfair portrayal of gun owners. One NRA study showed that over a two-year period, 60% of the New York Times's references to the NRA and to guns were negative. DAVIDSON, supra note 112, at 164 - 66.
315. Coleman, supra note 302, at 250.
316. BAGDIKIAN, supra note 312, at 17.
317. Data includes all LEXIS on-line print and electronic media reports through July 15, 1994, with 268 inaccurate or unqualified references and only 148 including any qualification or discussion of the relevant case law.
318. Susan Yoachum, The Problem with Gun Control Laws, SAN. FRAN. CHRON., July 13, 1993, at A1.
319. Bill Coats, Today, Consider Also Our Murders, ST. PETERSBURG TIMES, July 4, 1994, at 1; accord Ronald Henkoff, Kids Are Killing, Dying, Bleeding, FORTUNE, Aug. 10, 1992, at 62, 69 ("[T]he right to bear arms has been used to sanction a buildup of lethal personal weaponry unprecedented in human history."); Patrick J. Maio, Beretta Quietly Pumping Millions into State Economy, BUS. DATELINE, Apr. 2, 1993, at 13 ("As [Robert L. Bonaventure, Executive V.P. of Beretta, U.S.A. Corp.] sees it, losing an inch of Americans' right to bear arms would lead to a mile of unreasonable laws by gun control extremists . . . . Bonaventure is a staunch proponent of Constitutional rights ¾ such as the right to bear arms."); Tom Squitieri, Gun Sales Don't Create Crime, Merchants Say, USA TODAY, June 5, 1992, at 3A ("Gun store owner Sharon Baker has no problem if gun opponents want to do away with the Second Amendment, which provides a 'right . . . to keep and bear arms.' "); Anne Saker, Doctors: Gun Violence Epidemic Could Be Solved by Bullet Tax, Gannett News Service, Oct. 23, 1992 ("But the National Rifle Association objects to [Senator Daniel Patrick Moynihan's bill establishing a bullet tax], as it does to any measure concerning guns, as unconstitutional. The Second Amendment says the citizenry has the right to keep and bear arms."), available in LEXIS, News Library, Wires File.
The legal press has not done much better. See, e.g., Stop the Killing, NAT'L L.J. , July 19, 1993, at A12. In reaction to the July 1, 1993 fatal shootings of eight persons at San Francisco's Pettit & Martin, the National Law Journal called for the legal profession to "ensure that this is a society ruled by law, not by the dictates of those who use violence to accomplish their goals" and to "work toward ending the easy availability and everyday use of deadly weapons in our society." The editorial went on to support the judicially rejected "insurrectionist position":
For too long lawmakers have been thralled to the organized gun lobby and its apologists who have brought up hoary arguments that the Second Amendment to the U.S. Constitution makes gun ownership a sacred right. An equally forceful argument must be made to show that the so-called right to bear arms should be viewed as the right for the people to band together and oppose an oppressive government, forcefully if necessary.
Foreign journalists have also been affected by the constitutional false consciousness surrounding the Second Amendment. See, e.g., Reaction to Hattori Verdict, Report from Japan (Yomiuri News Service), May 25, 1993 (stating that Masao Horibe, professor at Hitotsubashi University and "an expert on U.S. law," found a not-guilty verdict in the trial of a man who mistakenly killed a Japanese student unsurprising "given U.S. citizens' strong belief in self-defense and the U.S. constitutional right to bear arms"), available in LEXIS, News Library, Allnws File; see also Steps on a Sticky Slope, ECONOMIST, Apr. 6, 1991, at 22, 23 ("The big legal obstacle farther down the slippery slope is the second amendment to the constitution, which preserves the right to bear arms. Few are yet ready to change that.").
320. ABC World News Sunday (ABC television broadcast, Jan. 2, 1994) (Beth Nissen, reporting), available in LEXIS, News Library, Script File.
321. Nightline: Gun-Toting Religion in the U.S. (ABC television broadcast, March 5, 1993) (Dave Marash, reporting), available in LEXIS, News Library, Script File; see Sixty Minutes: Arms and the Woman, supra note 138 (reporting that the Center for Disease Control and the Clinton White House see the issue of guns "as a matter of public health instead of one of individual rights"); cf. Michael Gartner, Glut of Guns: What Can We Do About Them?, USA TODAY, Jan. 16, 1992, at 9A (former Des Moines Register Editor and then-NBC Chairman Michael Gartner saying that "the only way" to prohibit private handgun use is to "change the Constitution").
322. Brad Schmitt, Limbaugh Takes Potshots at Clinton at NRA Gathering, Gannett News Service, Apr. 25, 1993, available in LEXIS, News Library, Wires File; see also Clifford Krauss, '93 Crime Bill Still Faces '92 Problems, N.Y. TIMES, Sept. 14, 1993, at A22 ("Most Democratic leaders, for instance, would like the [1993 crime bill] to ban sales of assault weapons, a proposal that Republicans and some conservative Democrats say would conflict with the Second Amendment's guarantee of the right to bear arms.").
323. Larry Rohter, County Creates Militia to Defend Gun Rights, N.Y. TIMES, May 29, 1994, at A14; see also Michael Norton, Petoskey Man Forms Militia, TRAVERSE CITY RECORD-EAGLE (Traverse City, Fla.), May 29, 1994, at 1A (containing no discussion of relevant case law in reporting same story).
324. Bill Zimmerman, Newsday Student Briefing Page on the News; Most Readers Express Fear, NEWSDAY, Dec. 15, 1993, at 25.
325. See, e.g., Special Constitution Package: Constitutional Quiz; Test Your Knowledge of the U.S. Constitution, UPI, Apr. 20, 1987, available in LEXIS, News Library, UPI File.
326. Not all journalists have ignored the Second Amendment landscape. See, e.g., Smyth, supra note 113, at 31 ("[A]lthough the writings of James Madison and Thomas Jefferson support it, the NRA's argument on the Second Amendment has no basis in American case law."); Taming the Gun Monster that is Consuming America, L.A. TIMES, Oct. 15, 1993, at B8 (stating that the Second Amendment creates no significant barrier to comprehensive gun control); Weathers, supra note 9, at 134, 136 (same).
327. Cf. David S. Broder, War on Cynicism, WASH. POST, July 6, 1994, at A19 (decrying the "degradation of journalism" by tabloid sensationalism, and relating concerns that "substance of policy is not communicated [because] reporters carry over to their coverage of government the campaign mind-set of horse-race journalism, and that process stories predominate and the emphasis is on who is gaining or losing, not on what is being done").
328. New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).
329. Branzburg v. Hayes, 408 U.S. 665, 705 (1971) ("The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.").
330. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (stating that academic freedom is "a special concern of the First Amendment").
331. As one sociologist noted:
The obligations of the academic profession derive primarily, if not exclusively, from the first obligation inherent in the custodianship, pursuit, acquisition, and transmission of knowledge ¾ namely, the concern to establish truth in accordance with methodical procedures, by systematic study, in accordance with rules of evidence and logical principles of reasoning.
Edward Shils, The Academic Ethos, AM. SCHOLAR, Spring 1978, at 165, 168 .
332. Mark Yudof, Three Faces of Academic Freedom, 32 LOY. L. REV. 831, 841 (1987); see Shils, supra note 331, at 179 ("University teachers are members of their larger society, with the rights and obligations of all citizens; they perhaps also have additional obligation arising from their superior knowledge.").
333. See Barnhizer, supra note 267, at 132 (referring to "legal scholars' intellectual and social obligations emerging from their having preempted the field of law, possessing a monopoly on legal education, and benefitting from their privileged status as intellectuals of the law").
334. Shils, supra note 331, at 166 ("In consequence of his ¾ or her ¾ presumed mastery of a body of knowledge, the teacher enjoys a certain deference and certain opportunities for influence which are not accessible in the same way and degree to the ordinary citizen.").
335. The Statement of Good Practices by Law Professors in the Discharge of Their Ethical and Professional Responsibilities [hereinafter AALS Statement of Good Practices], in ASSOCIATION AM. L. SCH., 1993 HANDBOOK 83 (1993), provides:
A basic responsibility of the community of higher education in the United States is to refine, extend, and transmit knowledge. As members of that community, law professors share with their colleagues in the other disciplines the obligation to discharge that responsibility.
As AALS President Rennard Strickland recently observed:
As legal educators, we have a special challenge, a unique opportunity and a heavy responsibility to reach beyond our individual classrooms and library carrels . . . . Many of our most complex national and international issues are best understood in terms of legal questions which we as legal educators must be prepared to translate into concepts which can be understood by the general public.
Ken Myers, AALS Debates Rule of Professors: Should They Educate the Public?, NAT'L L.J. , Dec. 26, 1994, at A17.
336. As a commentator urged almost 60 years ago:
With law as the only alternative to force as a means of solving the myriad problems of the world . . . the articulate among the clan of lawyers might, in their writings, be more pointedly aware of those problems, might recognize that the use of law to help toward their solution is the only excuse for the law's existence, instead of blithely continuing to make mountain after mountain out of tiresome technical mole hills.
Fred Rodell, Goodbye to Law Reviews, 25 VA. L. REV. 38, 43 (1936).
337. See Bruce A. Ackerman, The Marketplace of Ideas, 90 YALE L.J. 1131, 1140 (1981) ("A critical academic task . . . is to clarify the competing ideals currently struggling for ascendancy: by exploring their competing policy implications, by appraising their philosophical foundations, by placing them in . . . context.").
338. Sanford Levinson, Professing Law: Commitment of Faith or Detached Analysis?, 31 ST. LOUIS U. L.J. 3, 15 (1986).
339. See George Kannar, Citizenship and Scholarship, 90 COLUMN. L. REV. 2017, 2063 (1990) (reviewing four books that discuss the failed nomination of Robert Bork to the Supreme Court) ("[A]s Hannah Arendt has suggested with respect to journalists, even while playing the most conventional version of the 'detached' scholarly role, the legal scholar nonetheless may still perform an important political function, precisely because that function is being performed from outside the political realm." (citing HANNAH ARENDT, Truth and Politics, in BETWEEN PAST AND FUTURE 227 (1968))).
340. Oftentimes that voice will be granted respect and given weight not only for its presumed expertise, but because the scholarly perspective is assumed to be a relatively nonpartisan one.
341. See, e.g., Kannar, supra note 339, at 2022 (noting the "responsibilities implicit in the privileged position that [legal scholars] occupy with respect to constitutional politics").
342. One commentator describes legal scholars as
"intellectual schizophrenics" even in the daily experience of their vocation: supposedly devoted to the discovery of truth in their scholarship, they simultaneously must "train[ ] Hessians" to lubricate the wheels of commerce for the highest bidder ¾ although the actual teaching of such manipulative argumentation may breed a carelessness about the same truth their scholarship is supposedly discovering. Worse, they are expected to perform this "schizophrenic" job in the context of a larger professional culture whose norms not only privilege manipulation on behalf of clients . . . but which also seem almost to endorse deception, at least outside of court.
Id. at 2057 (citations omitted).
343. AALS Statement of Good Practices, supra note 335, at 84.
344. Anthony T. Kronman, Foreword: Legal Scholarship and Moral Education, 90 YALE L.J. 955, 967 (1981); see also Shils, supra note 331, at 180 ("[T]he central obligations of the academic ethos are adherence to the standard of truthfulness and respect for the fiduciary responsibility engendered by the possession of knowledge.").
345. Arthur Schlesinger, Jr., Intellectual's Role: Truth to Power?, WALL ST. J. , Oct. 12, 1983, at 28 (quoting Morgenthau).
346. Id. (reflecting on the role of the intellectual in his engagement with power).
348. Barnhizer, supra note 267, at 151.
349. Levinson, supra note 12, at 642; see also John Kaplan, Foreword to FIREARMS & VIOLENCE: ISSUES OF PUBLIC POLICY at xxv (Donald B. Kates ed., 1984) ("For some years, the Second Amendment to the Constitution has been regarded by the great majority of constitutional scholars as irrelevant to the issue of gun control.").
350. E.g., GERALD GUNTHER, CONSTITUTIONAL LAW (12th ed. 1991) (containing no mention of the Second Amendment in the discussion of Fourteenth Amendment Incorporation, and nowhere citing to United States v. Miller, 307 U.S. 174 (1939)); RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW 358 (4th ed. 1993) (mentioning only, in two bare lines, the holding of Presser v. Illinois, 116 U.S. 252 (1886), that the Second Amendment is not incorporated into the Fourteenth); GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW (2d ed. 1991) (containing no mention of the Second Amendment or related case law); see also PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 550 -54 (3d ed. 1992) (dealing with the Second Amendment only as it regards incorporation doctrine); cf. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5 -2, at 299 n.6 (2d ed. 1988) (stating that the Second Amendment is ancillary to other constitutional guarantees of state sovereignty, but at least taking an extended footnote to discuss the Second Amendment) .
351. 87 INDEX TO LEGAL PERIODICALS (June 1994) [hereinafter ILP].
352. AMERICAN ASS'N L. SCH., DIRECTORY OF LAW TEACHERS, 1993 -1994 , at 1069 -78 (1993).
353. Bogus, supra note 11; Wendy Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarassing Second Amendment, 99 YALE L.J. 661 (1989); Cottrol & Diamond, supra note 12; Stephanie A. Levin, Grassroots Voices: Local Action and National Military Policy, 40 BUFF. L. REV. 321 (1992); Levinson, supra note 12; McClurg, supra note 108; Van Alstyne, supra note 12; David E. Vandercoy, The History of the Second Amendment, 28 VAL. U. L. REV. 1007; Williams, supra note 48.
354. The number reflects only law review articles with a significant Second Amendment focus. It does not include scholarly discussions of other gun-related topics such as products liability or criminological analyses of gun violence. Nor does the total include student notes or bar journal articles. Cf. Kates, supra note 12 (counting 36 articles on the Second Amendment published from 1980 through 1983). NRA Executive Vice President Wayne LaPierre includes a similar list in his recent commercially successful book ¾ yet another repackaging of standard materials upon which the NRA relies. WAYNE LAPIERRE, GUNS, CRIME, & FREEDOM 237 (1994).
355. Second Amendment articles are currently listed under the misleading "Right toBear Arms." For many years, the Index to Legal Periodicals grouped Second Amendment articles under the general heading of "Weapons." Thus, in 1983 the ILP listed Don Kates's highly influential Handgun Prohibition and the Original Meaning of the Second Amendment, supra note 12, just above articles titled The Law and Politics of Foreign Military Sales and The Legality of a High-Technology Missile Defense System: The ABM and Outer Space Treaties. This is perhaps one more example of the transition from associating the Second Amendment with the military to associating it with the apparently inescapable "right to bear arms."
356. Five warhorses have pulled virtually all of the load: Stephen Halbrook (nine articles), Don Kates (five), David Hardy (five), David Caplan (three), and Robert Dowlut (three). These 25 pieces are a rather impressive output from a band that essentially knows just one tune.
357. In 1993 the gun lobby organized a sympathetic scholars' group, known as Academics for the Second Amendment. See infra notes 396 - 402.
358. The gun lobby offers an unheard-of bounty of up to $25,000 as first prize in its annual "Stand Up for the Second Amendment" essay contest, which seeks publication-quality law review pieces on gun-rights issues. The 1994 - 95 theme, not surprisingly, is "The Right of the Individual to Keep and Bear Arms as a Federally Protected Right." FCRLDF, AM. RIFLEMAN, Jan. 1994, at 69, 69; Letter from Firearms Civil Rights Legal Defense Fund, Scholarship for Law Student Essays (Oct. 7, 1994) (on file with the Boston University Law Review).
359. On the broad-individual-right side, see Beschle, supra note 12, Cottrol & Diamond, supra note 12, Levinson, supra note 12, Lund, supra note 12, Van Alstyne, supra note 12, Vandercoy, supra note 353, and Williams, supra note 48. On the narrow-individual-right side, see Bogus, supra note 11, Levin, supra note 353, and Rohner, supra note 11.
360. Levinson, supra note 12, at 642.
361. See, e.g., Lund, supra note 12, at 103 - 04.
362. See Bogus, supra note 11; Levin, supra note 353; Rohner, supra note 11.
363. See supra note 12 (collecting articles).
364. See supra part I.
365. Levinson, supra note 12.
366. Id. at 642.
368. Id. at 646 - 47.
369. Id. at 651, 656 - 67.
370. Id. at 648 - 49.
371. Henigan, supra note 11, at 111; see also id. at 119 -22.
372. Levinson, supra note 12, at 654.
373. See supra notes 34 - 41 and accompanying text.
374. See supra notes 42- 48 and accompanying text. Levinson later admitted that the insurrectionist concept is "an embarassing residue of an anachronistic way of looking at the world." Mauro, supra note 237, at 2A (quoting Levinson). It is not clear whether Levinson is proud to have raised the scholarly banner behind that anachronistic vision.
375. Levinson, supra note 12, at 654 -55.
376. Sanford Levinson, What Do Lawyers Know (And What Do They Do with Their Knowledge)?, 58 S. CAL. L. REV. Rev. 441, 454 (1985) ("Judicial opinions, issued under the particular constraints of the judicial role, can be nothing but suggestions as to what the Constitution might mean."). This Article contends that judicial opinions do matter and should at least be conveyed to a public engaged in political/constitutional debate, particularly when those opinions form a consensus interpretation.
377. See infra notes 396 - 402 (describing the pro-gun-lobby bias of this group).
378. See Sanford Levinson, Democratic Politics and Gun Control, 4 RECONSTRUCTION 137 (1992).
379. Levinson, supra note 12, at 659.
380. Van Alstyne, supra note 12, at 1239-40. Van Alstyne's piece trots out a misleadingly edited version of Madison's oft-quoted The Federalist No. 46. Van Alstyne states:
Madison contrasted the "advantage . . . the Americans possess" (under the proposed constitution) with the circumstances in "several kingdoms of Europe . . . [where] the governments are afraid to trust the people with arms."
Van Alstyne, supra note 12, at 1245. The passage, in full, actually reads:
Besides the advantage of being armed, which the American people possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit. Notwithstanding the military establishments of the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
THE FEDERALIST No. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961). This passage discusses two different barriers against tyranny: a militia and an armed populace. The Second Amendment, by its introductory clause, is designed to preserve the militia. Indeed, Madison's words strongly suggest that the first barrier, the "advantage" of an armed populace, is one already possessed at the time of the Constitution, as a consequence of the frontier nature of American society, and as compared against the more established nations of Europe. In any event, Van Alstyne's editing, which is standard NRA editing, conveniently combines two sentences into one, making the passage far stronger support than it is objectively.
381. Van Alstyne, supra note 12, at 1255.
382. Id. at 1239 - 40.
383. Id. at 1239.
384. Cottrol & Diamond, supra note 12. The gun lobby bogeyman of disarmament and confiscation appears again. Id. at 310 n.3. A number of the other scholarly endorsements of the gun lobby's Second Amendment gospel buy into the confiscation claim. See Levinson, supra note 12, at 656, 657 (stating that "it is hard . . . to see how one can argue that circumstances have so changed as to make mass disarmament constitutionally unproblematic" and warning of dangers where "a state fac[es] a totally disarmed population"); Van Alstyne, supra note 12, at 1250 (arguing that the Second Amendment "is simply unwelcome in any community that wants no one (save perhaps the police?) to keep or bear arms at all"). In a provocative article, Carl Bogus challenges the conclusions of Cottrol and Diamond, arguing that:
an examination of the interrelationships among race, riots, and guns in America properly leads to the conclusion that African-Americans have been particularly victimized by guns and the so-called "right to bear arms." The lesson to be drawn from both history and contemporary experience is not that blacks should be armed, but that all citizens should be subject to stricter gun control regulations.
Bogus, supra note 11, at 1367.
385. Cottrol & Diamond, supra note 12, at 361.
386. SUGARMANN, supra note 2, at 158; see also Kates, supra note 12, at 254 -57 (discussing the Black Codes, which forbade blacks from owning or bearing firearms, thus making blacks defenseless against assaults by their former masters).
387. See supra note 9 and accompanying text.
388. Cottrol & Diamond, supra note 12, at 310 n.3.
389. See, e.g., Robert Cottrol & Raymond Diamond, Second Amendment Gives Citizenry Right to Bear Arms, CONN. L. TRIB., June 3, 1991, at 18; Robert J. Cottrol, Want Gun Control? Enforce the Second Amendment!, AM. RIFLEMAN, Mar. 1990, at 21, 21 (claiming that "[o]verwhelmingly, the American people support the right of law-abiding citizens to own firearms for self-defense and sporting purposes").
390. GUN CONTROL AND THE CONSTITUTION: SOURCES AND EXPLORATIONS ON THE SECOND AMENDMENT (Robert J. Cottrol ed., 1994) (including only 3 essays out of 10 offering positions contrary to the broad-individual-right view).
391. See Amar, supra note 12, at 1162-73 (rejecting the "states' rights" view of Second Amendment on originalist grounds, with no discussion of contrary case law); Charles L. Cantrell, The Right to Bear Arms: A Reply, 53 WIS. B. BULL., Oct. 1980, at 21, 26 (claiming that the case law "is of little precedential value in attempting to derive a constitutional norm for interpreting the Second Amendment"); James B. Whisker, Historical Development and Subsequent Erosion of the Right to Keep and Bear Arms, 78 W. VA. L. REV. 171, 184 (1975 -76) (failing to discuss any federal case subsequent to the Miller decision, yet complaining that "courts, and especially the federal courts, have provided fewer guidelines than have been provided for other fundamental rights"); cf. Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 RUTGERS L.J. 1, 64 - 67 (1992) (reviewing standard originalist sources ¾ and ignoring contrary judicial interpretation ¾ to locate a right to bear arms in Ninth, rather than Second, Amendment). But see Lund, supra note 12, at 110 (acknowledging a contrary judicial consensus with several citations, but dismissing the decisions as "intellectually untenable").
392. Cottrol, supra note 389, at 21.
393. Paul F. Campos, Advocacy and Scholarship, 81 CAL. L. REV. 817, 819 (1993) (discussing the sources of authoritative guidance for a lawyer).
394. Baker v. Carr, 369 U.S. 186, 211 (1962); see also Brest, supra note 272, at 180 ("[D]uring our two-hundred year history, the courts ¾ especially the United States Supreme Court ¾ have tended to be our chief constitutional interpreters. Indeed, legislators often talk and act as if only the courts have any business deciding constitutional questions.").
395. It is helpful to recall that the very basis of the Supreme Court's ability to interpret the Constitution arises from the fact it is a court; it ust decide cases before it in accordance with law, including the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 -71 (1803). This same power exists in any court of general jurisdiction, giving any court the ability to say what the Constitution means. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 609 (1975) (noting that a litigant may have constitutional claims resolved in state courts, and preserving for state courts a fair opportunity to "resolve federal issues").
396. As of March 13, 1993, Professors Amar, Cantrell, Cottrol, Diamond, Johnson, Levinson, and Lund were all AFSA members, as was political science Professor Whisker. Academics for the Second Amendment, An Open Letter on the Second Amendment, NAT'L REV., Mar. 15, 1993, at 23, 23. The group also published the Open Letter on the same date in the New Republic and the National Law Journal.
397. Academics Welcome Here, AM. RIFLEMAN, Dec. 1993, at 6, 6.
399. Letter from Joseph Olson, Introducing Academics for the Second Amendment (on file with the Boston University Law Review).
400. These legal scholars might take solace in the fact that their nonlawyer colleagues give them quite a bit of company in this regard. See supra note 231 for a sampling of history texts that ignore the judicial consensus on the Second Amendment.
401. See, e.g., Hearing on H.R. 1025 Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong., 1st Sess., Federal Doc. Clearing House, Sept. 30, 1993 (testimony of David B. Kopel), available in LEXIS, News Library, Script File; Don B. Kates, Jr., Right to Own Guns Has Scholarly Support, NAT'L L.J. , Apr. 12, 1993, at 12 (stating that the vast majority of law review articles published since 1980 on the Second Amendment adopt an "individuals'-right view"); The Last Chapter in Second Amendment History, AM. RIFLEMAN, Oct. 1993, at 34, 37 n.4 (referring to "scholarly research on the Second Amendment as an individual right" from Sanford Levinson, Akil Amar, Robert Cottrol, Ray Diamond, and Nicholas Johnson); cf. Another Landmark, AM. RIFLEMAN, Aug. 1994, at 6, 6 (favorably noting Van Alstyne's April 1994 Duke Law Journal article defending the broad- individual-right view of the Second Amendment).
402. For example, Levinson's essay worked wonders to further enshroud constitutional discourse in a fog. Reflecting the respect with which ostensibly nonpartisan legal scholars are viewed, Levinson was cited on the floor of the Senate as authority supporting the broad individual right to bear arms. 139 CONG. REC. S15,456 (daily ed. Nov. 9, 1993) (remarks of Sen. Craig); 136 CONG. REC. S6748-49 (daily ed. May 22, 1990) (remarks of Sen. Heflin). Columnist George Will repeated Levinson's one-sided observations in a column that offered no contrary judicial or scholarly views, and leapt to the erroneous conclusion that "gun control advocates who want to square their policy preferences with the Constitution should squarely face the need to deconstitutionalize the subject by repealing the embarassing amendment." Will, supra note 243, at 118. The popular press picked up the story. See, e.g., Richard Bernstein, The Right to Bear Arms: A Working Definition, N.Y. TIMES, Jan. 28, 1990, § 4 (Week in Review), at 6 (commenting that Levinson's article in the December issue of the Yale Law Journal has "recast the issue" of gun control along practical as well as constitutional grounds); Michael Kinsley, Second Thoughts, NEW REPUBLIC, Feb. 26, 1990, at 4, 4. Ultimately, the reading public on both sides of the gun control debate jumped on the bandwagon and bought into the repeal red herring. Compare Kenneth T. Barnes, Repeal of the 2nd Amendment Might Not Be a Bad Idea, ST. PETERSBURG TIMES, Mar. 30, 1991, at 17A ("Repealing this amendment deconstitutionalizes a right, which is a solemn deed for any Congress to be faced with, but Will appreciates this fact and makes his recommendation only with extreme reluctance.") with Henry Reeves, Jr., Shall We Disarm Law-Abiding Citizens, ATL. J. & CONST., May 24, 1991, at A17 (attacking George Will as (of all things) a "radical columnist" for making a repeal proposal, and arguing that repeal of the right to bear arms makes no sense "[i]n this godless modern age, when armed vandalism is epidemic in our streets").
403. Sissela Bok describes a political world in which lying is standard operating procedure:
While Watergate may be unusual in its scope, most observers would agree that deception is part and parcel of many everyday decisions in government. Statistics may be presented in such a way as to diminish the gravity of embarrassing problems. Civil servants may lie to members of Congress in order to protect programs they judge important, or to guard secrets they have been ordered not to divulge. If asked, members of Congress who make deals with one another to vote for measures they would otherwise oppose deny having made such deals. False rumors may be leaked by subordinates who believe that unwise executive action is about to be taken. Or the leak may be correct, but falsely attributed in order to protect the source.
SISSELLA BOK, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 183 (1989).
404. Kannar, supra note 339, at 2059 n.176 (citing Dean Carrington, Of Law and the River, 34 J. LEGAL EDUC. 222, 227-28 (1984) (noting that because the political world is "so rank with posturing, deception, and misrepresentation," there is a great need for persons committed to telling "unpleasant, 'demystifying truths' " even if they may cause embarassment to others)).
405. Id. at 2057.
406. Id. at 2045 (commenting on the difficulties legal scholars face in framing popular arguments, given the limited medium of the law reviews).
407. Id. at 2035 (quoting Ira C. Lupu, Constitutional Theory and the Search for the Workable Premise, 8 U. DAYTON L. REV. 579, 579 (1983)).
408. Janny Scott, Thinking Out Loud: The Public Intellectual Is Reborn, N.Y. TIMES, Aug. 9, 1994, at B1. This is not, of course, to say that all legal scholars have remained mute on the public stage. See, e.g., Patricia J. Williams, Lani, We Hardly Knew Ye, VILLAGE VOICE, June 15, 1993, at 25, 25-28 (defending Lani Guinier, whose nomination to the post of Assistant Attorney General for Civil Rights was withdrawn by President Clinton, based on Guinier's outspoken views on issues such as racism and sexism).
409. Lisa Green Markoff, Scholars Probe the Esoteric, NAT'L L.J. , April 9, 1990, at 1, 35.
410. HANS J. MORGENTHAU, A NEW FOREIGN POLICY FOR THE UNITED STATES 155 (1969).
411. Barnhizer, supra note 267, at 158.
412. See supra note 120 (cataloguing some recent gun control victories); see also Linda Feldman, Gun Control Advocates Gain Momentum, CHRISTIAN SCI. MONITOR, Dec. 14, 1993, at 3 (same). More recently, Massachusetts's Republican Governor (a former NRA stalwart and gun-owning hunter), William Weld, began calling for bans on both assault weapons and possession of handguns by anyone under 21. Ellen Goodman, Gun Lobby Under Fire, BOSTON GLOBE, Oct. 18, 1993, at 15.
413. Even before the current Republican leadership of the Committee, longtime NRA supporter Jack Brooks (D-Tex.) was its chair. He led the House negotiating team on the 1994 crime bill, vehemently opposing the assault-weapons ban in conference. But the ban survived as part of the final bill. Brooks received one consolation prize in the wake of his defeat: The final bill exempted pawnbrokers from completing background checks under the Brady Law. See William E. Clayton, Jr., Anti-Crime Measure Called Smart, Tough, HOUSTON CHRON., July 29, 1994, at A1. But the mere effort, without success, was not enough for the gun lobby. The NRA proceeded to endorse neither candidate during Brooks's reelection fight against a Republican, and Brooks lost. Richard Stewart, GOP Wave Washes Away Brooks' Bid for 22d Term, HOUSTON CHRON., Nov. 9, 1994, at A1 (noting that some other gun-rights groups reversed their long-time support of Brooks to favor his opponent).
414. See, e.g., ABC World News Tonight (ABC television broadcast, Feb. 4, 1994) (profiling Professor Richard Green, founding director of Crown Heights Youth Collective, and organizer of a Crown Heights, Brooklyn anti-violence effort called "Disarm '94"); Tracey L. Kaplan, Fatal Shooting at School Prompts Project to Spread Anti-Weapons Message, L.A. TIMES, June 5, 1993, at B4 (reporting Reseda, California high school teacher Jay Shaffer's creation of the WARN ("Weapons Are Removed Now") program, which sends students to local junior high schools and elementary schools to encourage younger students to stay away from guns and other weapons); Hal Mattern, Group Formed to Get Guns off Valley Streets, ARIZ. REPUBLIC, May 9, 1993, at H1 (reporting that Phoenix residents formed the group S.T.S. ("Stop the Shooting") in reaction to a two-year spasm of gun violence).
415. See, e.g., Paul Cotton, Gun-Associated Violence Increasingly Viewed as Public Health Challenge, 267 JAMA 1171 (1992) (stating that health providers increasingly agree that gun violence must be treated as a public health issue); Elders Blasts Gun Violence, Says It's a Health Problem, COM. APPEAL (Memphis), Mar. 24, 1994, at 4A (reporting a statement of the former U.S. Surgeon General, calling gun-related homicides a public health issue and arguing that "it is time for America to get over its love affair with guns"); Tracey L. Miller, Doctors: Gun Deaths are Health Epidemic, UPI, Apr. 25, 1994 (stating that the Health Coalition Against Violence declared that "gun violence has reached epidemic proportions in the United States and must be treated as a public health emergency"), available in LEXIS, News Library, UPI File.
416. Id., supra note 102, at 6 (announcing the formation of the ABA Legal Solutions to Gun Violence Project); see also Lawyers Committee on Violence, Gun Violence in New York City: Problems and Solutions (1994) (unpublished manuscript, on file with the Boston University Law Review).
417. Conference Targets Gun Violence, PLAIN DEALER (Cleveland), June 26, 1994, at 4A.
418. Center to Prevent Handgun Violence, Fight the Fraud, WALL ST. J. , May 2, 1994, at B5 (advertisement). The ad ran the same day in Roll Call and the national edition of the New York Times.
419. Pub. L. No. 103-159, 107 Stat. 1536 (1993).
420. Public Safety and Recreational Firearms Use Protection Act, Pub. L. No. 103 -322, ss 110101-110106, 108 Stat. 1769, 1996 -2010 (1994).
421. Smyth, supra note 113, at 31 ("Both the Brady Law . . . and the assault weapons ban bills are, at best, symbolic gestures, and partisans on both sides of the debate know it.").
422. A recent book studying the history of the NRA concludes:
[E]nactment of a national waiting period [and the assault weapons ban] could result in Congress, the press and the public viewing the problem as solved, leaving the issue of gun control to founder for the near future ¾ probably for years. And as firearms violence continues unchecked, the bill will then serve as just another NRA example of how "gun control" doesn't work. SUGARMANN, supra note 2, at 261.
423. Our present national patchwork quilt of state laws is hopelessly inadequate. States with strict regulations find that "[i]t is all too easy to move guns across state and city borders from areas where guns are easily available to places where firearm supplies are regulated." Franklin E. Zimring, Firearms, Violence and Public Policy, SCI. AM., Nov. 1991, at 48, 54. Any hope of relying on local firearms regulation has become less plausible since the NRA adopted a strategy, in the wake of the Morton Grove, Illinois local gun control ordinance, of convincing state legislatures to pass firearms- preemption laws forbidding local municipalities from passing gun restrictions stricter than state laws. Before Morton Grove three states had such preemption laws. As of 1991, the number was 41. SUGARMANN, supra note 2, at 59.
424. One good working blueprint for a new firearms policy comes from the Violence Policy Center in Washington. Noting that firearms are virtually unregulated and that American gun manufacturers have "carte blanche" to produce virtually any gun with only a few minor limitations, the Center calls for a "comprehensive regulatory approach to firearms." SUGARMANN & RAND, supra note 3, at 2. That approach labels guns as "inherently dangerous" products similar to prescription drugs, insecticides, and household chemicals, and would grant the hamstrung ATF the power to regulate firearms, ammunition, and firearm products, just as the federal government regulates other consumer products. That power would include the authority to issue recalls, establish safety standards, and ban specific classes of firearms that "present an unreasonable risk of injury or death and [if] no feasible safety standard would adequately reduce the risk." Id. at 24, 26, 29. Constantly under attack by the gun lobby and with few friends in the executive or legislative branch over the last few decades, the ATF currently has none of the standard regulatory powers of recall, design approval, or standard-setting granted to other agencies. Id. at 17. The Senate version of the Consumer Product Safety Act gave the Consumer Product Safety Commission ("CPSC") regulatory powers over firearms and ammunition, but that jurisdiction was stripped in the House bill and in conference. The CPSC retains such power today only over air guns and pellet guns. Id. at 27.
The plan would specifically ban handguns and all firearms that accept detachable ammunition magazines, and as urged by leading health-care professionals, the Center's plan would also include "a long-term public education/media campaign to change the public's perception of gun violence." Id., at 3; see also C. Everett Koop & George D. Lundberg, Violence in America: A Public Health Emergency, 267 JAMA 3075, 3075 -76 (1992) (advocating treating gun fatalities as a public health issue, and arguing that firearms should have regulations similar to motor vehicles, such as age requirements, demonstrated knowledge and skill, monitoring devices, and a forfeiture of rights if conditions are not met). Just as the regulation and control of pesticides has not led to a complete ban on their use, the Comprehensive Regulatory Plan would ensure "that firearms with legitimate sporting purposes remain available to the public." SUGARMANN & RAND, supra note 3, at 26.
A comprehensive plan would also include aggressive crackdowns on illegal gun-dealers, see, e.g., David M. Kennedy, Squeeze the Dealer, N.Y. TIMES, Apr. 22, 1994, at A27 (suggesting as initial moves: (1) sending young officers undercover to develop informers, buy guns, make initial arrests, and then offer lenient sentences for those willing to turn in the network of illegal gun buyers and sellers; (2) focusing on drug-dealing groups that sell guns to kids, making it clear that such gun-dealing will result in agressive attacks on all fronts of the groups' business; and (3) passing local and state laws making anyone who sells guns to minors jointly liable for any crimes committed with the guns), and several planks of the Gun Violence Prevention Act of 1994, H.R. 3932, 103rd Cong., 2d Sess. § 301 (1994) (making it unlawful to transfer to another person more than one handgun during any 30-day period), particularly the one-gun-a-month purchase limit.
Finally, the plan should have severe restrictions on the sale of ammunition. Specifically, the plan should terminate the current system of ammunition sales. Ammunition should only be sold by local law-enforcement-or ATF-operated ammunition sales centers in each community. Sales should require a mandatory background check and a reasonable monthly limitation on the number of rounds each customer may purchase. Such a system would make it more difficult for criminals to acquire ammunition by forcing them and their surrogates to purchase bullets from law-enforcement organizations, and causing a background check prior to most firearms use ¾ not just the initial purchase of the weapon. A limitation on the number of rounds available for purchase each month would reduce the risk of smuggling and resale. This strict regulation of ammunition sales would be both more effective and more fair than the steep tax hikes on ammunition suggested by Senator Daniel Patrick Moynihan. See S. 179, 103d Cong., 1st Sess. s 101 (1993) (proposing a 1000% tax on 9 millimeter, .25 caliber, and .32 caliber ammunition); Daniel Patrick Moynihan, Guns Don't Kill People. Bullets Do., N.Y. TIMES, Dec. 12, 1993, at E15 ("[T]he Federal Government needs to establish, and can establish, a full-fledged regime of bullet control . . . . We need to ban some rounds, tax others, keep records, scrutinize licenses to manufacture."). Although taxation seems a logical solution because it shifts the costs of gun violence from the public and individual victims to those supporting the gun and ammunition industry, major tax hikes smack of economic elitism ¾ effectively preventing poorer citizens from purchasing bullets, while keeping wealthier citizens armed to the teeth. The restricted access proposed here would increase administrative costs, delay, and frustration in acquiring ammunition, but all Americans would be subject to that same red tape on an equal basis.
Although such a comprehensive regulatory plan would surely result in dramatic reductions from current levels of gun violence, it is impossible to calculate its precise effects because such a thorough strategy has never been employed in this country. Still, some empirical research indicates that such a consistent national strategy of regulation would be effective. See, e.g., Christoffel, supra note 107, at 702 (citing surveys supporting the belief "that increased gun control would, particularly if consistent in contiguous locales, lead to lowering of firearm deaths and injuries").
425. Kahler, supra note 153, at A7 (quoting Dr. Jona Perlmutter, Professor of Clinical Psychiatry at UCLA).
426. See Macedo, supra note 270, at 68.
427. See Weiss, supra note 121, at 67 ("Arguably the country is now at a turning point on the gun issue, one that recalls the period in the 60's when two other private matters were transformed into public health issues: smoking and auto safety."); see also Barnhizer, supra note 267, at 148 ("Much of [legal scholars'] contribution arises from the timing of their arguments, reasserting and interpreting the language of principle and justice for a particular society at junctures of stress.")