Congress of Racial Equality, amicus curiae, US v. Emerson


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The Congress of Racial Equality as amicus curiae
US v. Timothy Joe Emerson
US Court of Appeals, Fifth Circuit
Filed December 17, 1999

submitted by Stephan Bijan Tshmassebi

STATEMENT OF INTEREST AND IDENTITY OF AMICUS CURIAE

The Congress of Racial Equality, Inc. (generally and well-known as "CORE"), is a New York not-for-profit corporation founded in 1942, with national headquarters in Harlem, New York City. CORE is a nationwide civil rights organization, with consultative status at the United Nations, which is primarily interested in the welfare of the black community, and the protection of the civil rights of all citizens, and in particular of the black community.

CORE has involved itself in the fight against crime, the scourge of black neighborhoods and the black community. CORE believes that those who may be victimized by violent criminals have a right to self-defense and to keep and bear arms secured by constitutional and common law.

ARGUMENT

I. SUMMARY OF ARGUMENT

The history of gun control in America has been one of discrimination, disenfranchisement and oppression of blacks, other racial and ethnic minorities, immigrants, and other unwanted elements. Robert J. Cottrol and Raymond T. Diamond, Never Intended to be Applied to the White Population: Firearms Regulation and Racial Disparity— The Redeemed South’s Legacy to a National

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Jurisprudence?, 70 Chi. Kent L. Rev. 1307-1335 (1995); Robert J. Cottrol and Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Georgetown L.J. 309-361 (1991); Raymond G. Kessler, Gun Control and Political Power, 5 Law & Pol’y Q. 381 (1983). Gun control laws were often specifically enacted to disarm and facilitate repressive action against these groups. Id.

The disarmament and oppression of newly freed blacks in the South after the Civil War, moved the Reconstruction Congress to pass civil rights laws and the Fourteenth Amendment in order to guarantee to the freedmen, amongst other protections, the protections afforded by the Second Amendment’s individual fundamental right to keep and bear arms.

More recent, facially neutral, gun control laws have been enacted for the alleged purpose of controlling crime. Often, however, the actual purpose or the actual effect of such laws has been to discriminate or oppress certain groups. id.; Ex Parte Lavinder, 88 W.Va. 713, 108 S.E. 428 (1921) (striking down martial law regulation inhibiting possession and carrying of arms). As Justice Buford of the Florida Supreme Court noted in his concurring opinion narrowly construing a Florida gun control statute:

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Watson v. Stone, 148 Fla. 516, 524, 4 So.2d 700, 703 (1941) (Buford, J., concurring).

II. GUN CONTROL MEASURES HAVE BEEN AND ARE
USED TO DISARM AND OPPRESS BLACKS AND
OTHER MINORITIES

A. Gun Control in the Slave Codes

The development of racially based slavery in the seventeenth century American colonies was accompanied by the creation of laws meting out separate treatment and granting separate rights on the basis of race. An early sign of such emerging restrictions and one of the most important legal distinctions was the passing of laws denying free blacks the right to keep arms. "In 1640, the first recorded restrictive legislation passed concerning blacks in Virginia excluded them from owning a gun." Lee B. Kennett and James LaVerne Anderson, The Gun in America: The Origins of a National Dilemma 50 (1975).

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W. Jordan, White over Black: American Attitudes Toward the Negro. 1550-1812 78 (1968).

In the later part of the 17th Century fear of slave uprisings in the South accelerated the passage of laws dealing with firearms possessions by blacks. In 1712, for instance, South Carolina passed “An act for the better ordering and governing of Negroes and Slaves” which included two articles particularly relating to firearms ownership and blacks. 7 Statutes at Large of South Carolina 3 53-54 (D.J. McCord ed. 1836-1873). Virginia passed a similar act entitled “An Act for Preventing Negroes Insurrections.” 2 the Statutes at Large; Being a Collection of All the Laws of Virginia, From the First Session of the Legislature, in the Year 1619, 481(W.W. Henning ed. 1823).

Thus, in many of the antebellum states, free and/or slave blacks were legally forbidden to possess arms. State legislation which prohibited the bearing of arms by blacks was held to be constitutional due to the lack of citizen status of the AfroAmerican slaves. State v. Newsom, 27 N.C. 250 (1844). Cooper v. Mayor of

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Savannah, 4 Ga. 68, 72 (1848). Legislators simply ignored the fact that the U.S. Constitution and most state constitutions referred to the right to keep and bear arms as a right of the "people" rather than of the "citizen". Stephen Halbrook, The

Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U. L.

Rev. 1, 15 (1981).

Chief Justice Taney argued, in the infamous Dred Scott case, that the Constitution could not have intended that free blacks be citizens:

Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 4 16-17 (1856) (emphasis ‘added). In a later part of the opinion, Justice Taney enumerated the constitutional protections afforded to citizens by the Bill of Rights:

Id. at 450. Clearly, the Court viewed the right to keep and bear arms as one of the

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fundamental individual rights guaranteed to American citizens by the Bill of Rights; which, blacks, who according to the Court were not American citizens, could not enjoy.

After the Civil War, southern legislatures adopted comprehensive

regulations, Black Codes, by which the new freedmen were denied many of the rights that white citizens enjoyed. These Black Codes often prohibited the

purchase or possession of firearms by freedmen. The Special Report of the AntiSlavery Conference of 1867 noted with particular emphasis that under these Black Codes blacks were "forbidden to own or bear firearms, and thus were rendered defenseless against assaults." Reprinted in H. Hyman, The Radical Republicans and Reconstruction 219 (1967).

1866 Miss. Laws ch. 23, § 1, 165 (1865).

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In response to these Black Codes and the South’s deprivation of the civil rights of the freedmen, the U.S. Congress enacted a series of civil rights bills and the Fourteenth Amendment. The legislative histories of these acts and the Fourteenth Amendment are replete with denunciations of the disarmament of blacks and state the intent of the drafters to guarantee to the freedmen the individual right to keep and bear arms for personal self-defense. Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L.’ Rev. 204,256(1983); Halbrook, supra, 4 Geo. Mason U. L. Rev, at 2126; Akhil Reed Amar, The Bill of Rights 264-266 (1998). The aforementioned intent was "[o]ne of the core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment." Amar, supra, The Bill of Rights at 264. See also, Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms,. 1866-1876 (1998).

One of these civil rights acts was the Freedman’s Bureau Act, which required that "laws ... concerning personal liberty, personal security,, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." 14 Stat 173, 176 (1866) (emphasis added).

In support of Senate Bill No. 9, which declared as void all laws in the former

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rebel states which recognized inequality of rights based on race, Senator Henry Wilson (R., Mass.) explained that: "In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them ... ." Cong. Globe, 39th Cong., 1st Sess. 40 (1865).

The framers of the Civil Rights Act of 1866 argued that the issue of the right to keep and bear arms by the newly freed slaves was of vital importance. Senator William Salisbury (1)., Del.) stated that "[i]n most of the southern States, there has existed a law of the State based upon and founded in its police power, which declares that free negroes shall not have the possession of firearms or ammunition. This bill proposes to take away from the States this police power." Id. at 478. Representative Henry J. Raymond (R., N.Y.) explained that the rights of citizenship entitled the freedmen to all the rights of United States citizens: "He has a defined status: he has a country and a home; a right to defend himself and his wife and children; a right to bear arms; a right to testify in the Federal Courts .;. Id. at 1266.

During the debate on the Fourteenth Amendment, Kansas Senator Samuel Pomeroy asked:

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Cong. Globe, 39th Cong., 1st Sess 1182(1866).

The legislators were specifically concerned with the violation in the South of the freedman’s right to keep and bear arms.

Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1167 (1991) (quoting Cong. Globe, 39th Cong., 1st Sess. 2766 (1866)).

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Eric Foner, Reconstruction 258-59 (1988) (emphasis added).

Within three years of the adoption of the fourteenth amendment in 1868, Congress was considering legislation to suppress the Ku Klux Klan. In a report on violence in the South, Representative Benjamin F. Butler (R., Mass.) stated that the right to keep arms was absolutely necessary for protection. He noted instances of "armed confederates" terrorizing the negro, and "in many counties they have preceded their outrages upon him by disarming him, in violation of his right as a citizen to ‘keep and bear arms’ which the Constitution expressly says shall never be infringed." H.R. Rep. No. 37, 41st Cong., 3rd Sess. 3 (1871).

The anti-KKK bill was originally introduced to the House Judiciary Committee with the following provision:

Cong. Globe, 42nd Cong., 1st Sess. 174 (1871) (emphasis added).

Representative Butler explained the purpose of this provision:

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H.R. Rep. No. 37, 41st Cong., 3rd Sess. 78 (1871).

The drafters of the civil rights acts and of the Fourteenth Amendment specifically intended to protect the individual fundamental right of the freedmen to keep and bear arms. Amar, supra, 100 Yale L.J. 1131; Amar,supra, The Bill of Rights Halbrook, supra, 4 Geo. Mason U. L. Rev. 1; Stephen P. Halbrook, Personal Security, Personal Liberty, and "The Constitutional Right to Bear Arms": Visions Of the Framers of the Fourteenth Amendment, 5 Seton Hall Const. L.J. 341-434 (1995).

David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 •B.Y.U. L. Rev. 1359, 1453-54 (1998). As noted constitutional scholar Akhil Reed Amar

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commented, the focus of the Second Amendment had changed:

Amar, supra, The Bill of Rights, at 266.

C. Post-Reconstruction

Even after the passage of the Civil Rights Act and the Fourteenth Amendment, southern states continued in their effort to disarm blacks. Some Southern states reacted to the federal acts by conceiving a means to the same end:

banning a particular class of firearms, in this case cheap handguns, which were the only firearms the poverty-stricken freedmen could afford. William Tonso, Gun Control: White Man’s Law, Reason, Dec. 1985, at 23.

In the very first legislative session after white supremacists regained control of the Tennessee legislature in 1870, that state set the earliest southern postwar pattern of legal restrictions by enacting a ban on the carrying, "publicly or privately," of, among other things, the "belt or pocket pistol or revolver." Andrews

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v. State, 50 Tenn. (3 Heisk.) 165, 172 (1871) (citing "An Act to Preserve the Peace and Prevent Homicide"). In 1879, the General Assembly of Tennessee banned the sale of any pistols other than the expensive "army or navy" model revolvers. State v. Burgoyne, 75 Tenn. 173, 174 (1881) (citing "An Act to Prevent the Sale of Pistols"); Don B. Kates, Jr., Toward A History of Handgun Prohibition in the United States in Restricting Handguns: The Liberal Skeptics Speak Out 14 (D. Kates ed. 1979).

In 1881, Arkansas followed Tennessee’s law by enacting a virtually identical "Saturday Night Special Law," which again was used to disarm blacks. Dabbs v. State, 39 Ark. 353 (1882). Instead of formal legislation, other deep South states simply continued, in violation of the Fourteenth Amendment, to enforce the preemancipation statutes prohibiting the possession of firearms by blacks. Kates,supra, Toward A History of Handgun Prohibition in the United States, at 14.

A different route was taken in Alabama, Texas, and Virginia: there, exorbitant business. or transaction taxes were imposed in order to price handguns out of the reach of blacks and poor whites. An article in Virginia’s university law review called for registration and a "prohibitive" sales tax on handguns as a way of disarming blacks. Comment, Carrying Concealed Weapons, 15 Va. L. Reg. 391, 39 1-92 (1909).

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In many jurisdictions systems were emplaced where retailers would report to local authorities whenever blacks purchased firearms or ammunition. The sheriff would then arrest the purchaser and confiscate the firearm. Kates, supra, Toward A History of Handgun Prohibition in the United States, at 14. Mississippi legislated this system by enacting the first registration law for retailers in 1906, requiring retailers to maintain records of all pistol and pistol ammunition sales, and to make such available to authorities for inspection. Id.

Federal prosecutors, invoking the new civil rights laws, brought cases against KKK members and others who had violated the civil rights of freedmen. Many of these prosecutions involved charges that the defendants violated the Second Amendment rights of freedmen by confiscating the freedmen’s firearms. See Kermit L. Hall, Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871-1872, 33 Emory LJ:921 (1984). One of these cases, arising out of the disarmament and murder. of armed blacks in the Colfax courthouse (also known as the "Colfax Massacre"), and a subsequent federal prosecution of Klansmen for violation of the freedman’s civil rights under the Enforcement Acts, went to the Supreme Court. See 16 Stat. 140 § 6(1870); see

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also 18 U.S.C. §§ 241-242 (1994). United States v. Cruikshank, 92 U.S. 542 (1875). The indictment in Cruikshank charged, inter alia, a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the right of assembly and the right to keep and bear arms for lawful purposes.

Cruikshank upheld the Klan’s repressive actions against blacks in the South by holding the Enforcement Acts unconstitutional. Cruikshank, 92 U.S. 542. The Court held that because the rights of the victimized freedmen, including the right to free speech and the right to keep and bear arms, existed independently of the Constitution, and the first and second amendments guaranteed only that such rights shall not be infringed by the federal government, the federal government had no power to punish a violation of such rights by private individuals or the states. The Fourteenth Amendment offered. no relief, the Court held, because the case involved a private conspiracy and not state action; the aggrieved citizens could seek protection and redress only from the state government and not from the federal government. Id. at 553-54.

Cruikshank signaled the end of reconstruction and, with the Slaughterhouse Cases, that century’s defeat of the Fourteenth Amendments attempt to make the Bill of Rights effective against state government abuses. "Firearms in the Reconstruction South provided a means of political power for many. They were

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the symbols of the new freedom for blacks ... . In the end, white southerners triumphed and the blacks were effectually disarmed." Kennett and Anderson, supra, at 155.

At the end of the 19th century, Southern states began formalizing firearms restrictions in response to an increased concern about firearms ownership by certain whites, such as agrarian agitators and labor organizers. In 1893, Alabama, and in 1907, Texas, began imposing heavy business/transaction taxes on handgun sales in order to resurrect economic barriers to ownership. South Carolina, in 1902, banned all pistol sales except to sheriffs and their special deputies, which included company strongmen and the KKK. Kates, supra, Toward A History of Handgun Prohibition in the United States, at 14-15.

The Supreme Court of North Carolina, in striking down a local statute which prohibited the open carrying of firearms without a permit in Forsyth County, stated:

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State v. Kerner, 181 N.C. 574, 578, 107 S.E. 222, 225 (1921).

In the Northeast, the period from the 1870’s to the mid-1930’s was characterized by strong xenophobic reactions to Eastern and Southern European immigrants. Armed robbery in particular was associated with the racial stereotype in the public mind of the East and South European immigrant as lazy and inclined to violence and espousing anarchy. The fear and suspicion of these "undesirable" immigrants, together with a desire to disarm labor organizers, led to a concerted campaign by organizations such as the Immigration Restriction League and the American Protective Association, for the enactment of a flat ban on the ownership of firearms, or at least handguns, by aliens. Kates,supra, Toward A History of Handgun Prohibition in the United States, at 15-16.

In 1911, New York enacted the Sullivan law. N.Y. PENAL LAW § 1897 (Consol. 1909)(amended 1911). "Of proven success in dealing with political dissidents in Central European countries, this system made handgun ownership illegal for anyone without a police permit." Kates, supra, Toward A History of Handgun Prohibition in the United States, at 15. The New York City Police Department thereby acquired the official and wholly arbitrary authority to deny or permit the possession of handguns; which the department used in its effort to

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disarm the city’s Italian population. The Sullivan law was designed to

Kennett and Anderson, supra, at 177-78.

Most of the American handgun ownership restrictions adopted between 1901 and 1934 followed on the heels of highly publicized incidents involving the incipient black civil rights movement, foreign-born radicals or labor agitators. Kates, supra, Toward A History of Handgun Prohibition in the United States, at 18-19.

After World War I, a generation of young blacks, often led by veterans familiar with firearms and willing to fight for the equal treatment that they had received in other lands, began to assert their civil rights. In reaction, the Klan again became a major force in the South in the 19 10’s and 1920’s. Often public authorities stood by while murders, beatings and lynchings were openly perpetrated upon helpless black citizens. And once again, gun control laws made sure that the victims of the Klan’s violence were unarmed and did not possess the ability to defend themselves, while at the same time cloaking the specially deputized. Klansmen in the safety of their monopoly of arms. Id. at 19.

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The resurgence of the Klan was not limited to the South, but was present in force in southern New Jersey, Illinois, Indiana, Michigan and Oregon. All of these states enacted either handgun permit laws or laws barring alien handgun possession between 1913 and 1934. The Klan targeted not only blacks, but also Catholics, Jews, labor radicals, and the foreign born; and these people also ran the risk of falling victim to lynch mobs or other more clandestine attacks, often after the victims had been disarmed by state or local authorities. Id. at 19-29.

III. CURRENT GUN CONTROL EFFORTS: A LEGACY OF RACISM

Behind current gun control efforts often lurks the remnant of an old prejudice, that the lower classes and minorities, especially blacks, are not to be trusted with firearms. Today the thought remains among gun control advocates: if you let the poor or blacks have guns, they will commit crimes with them. Even noted anti-gun activists have admitted this. Gun control proponent and journalist Robert Sherrill franidy admitted that the Gun Control Act of 1968 was "passed not to control guns but to control Blacks." Robert Sherrill, The Saturday Night Special 280 (1972). "It is difficult to escape the conclusion that the ‘Saturday night special’ is emphasized because it is cheap and it is being sold to a particular class of people. The name is sufficient evidence— the reference is to ‘nigger-town Saturday night."

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Barry Bruce-Briggs, The Great American Gun War, The Public Interest, Fall 1976 at 37.

The worst abuses at present occur under the mantle of facially neutral laws that are, however, enforced in a discriminatory manner. Even those laws that are passed with the intent that they be applied to all, are often enforced in a discriminatory fashion and have a disparate impact upon blacks, the poor and other minorities. In many jurisdictions which require a discretionary gun permit, licensing authorities have wide discretion in issuing a permit, and those jurisdictions unfavorable to gun ownership, or to the race, politics, or appearance of a particular applicant frequently maximize obstructions to such persons while favored individuals and groups experience no difficulty in the granting of a permit. Hardy and Chotiner, The Potential for Civil Liberties Violations in the Enforcement of Handgun Prohibitions in Restricting Handguns: the Liberal Skeptics Speak Out, supra, at 209-10; Tonso, supra, at 24. In St. Louis,

Don B. Kates, Jr., On Reducing Violence or Liberty, 1976 Civ. Liberties Rev. 44,

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56.

Permit systems which vest wide discretion in public or police officials have been used on numerous occasions to stymie civil rights efforts. See, Shuttlesworth v. City of Birmingham, 394 U.S. 147, 148 (1969). New York’s infamous Sullivan law, originally enacted to disarm Southern and Eastern European immigrants who were considered racially inferior and religiously and ideologically suspect, continues to be enforced in a racist and elitist fashion "as the police seldom grant hand gun permits to any but the wealthy or politically influential." Tonso, supra, at 24.

Kates, Introduction, in Restricting Handguns: the Liberal Skeptics Speak Out, supra, at 5.

The obvious effect of gun-prohibitions is to deny law-abiding citizens access to firearms for the defense of themselves and their families. That effect is doubly discriminatory because the poor, and especially the black poor, are the primary

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victims of crime and in many areas lack the necessary police protection. African Americans, especially poor blacks, are disproportionately the

victims of crime, and the situation for households headed by black women is particularly difficult. In 1977, more than half of black families had a woman head of household. A 1983 report by the U.S. Department of Labor states that

U.S. Dept. of Labor, Time of Change: 1983 Handbook on Women Workers 118 Bull. 298 (1983).

The problems of these women are far more than merely economic. National figures indicate that a black female in the median female age range of 25-34, is about twice as likely to be robbed or raped as her white counterpart. She is also three times as likely to be the victim of an aggravated assault. Id. at 90. See United States Census Bureau, U.S. Statistical Abstract (1983). A 1991 DOJ study concluded that "[b]lack women were significantly more likely to be raped than white women." Caroline Wolf Harlow, U.S. Dept. of Justice, Female Victims of

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Violent Crime 8 (1991). "Blacks are eight times more likely to be victims of homicide and two and one-half times more likely to be rape victims. For robbery, the black victimization rate is three times that for whites ... ." Paula D. McClain, Firearms Ownership, Gun Control Attitudes, and Neighborhood Environments, 5 Law & Pol’y Q. 299, 301 (1983).

The need for the ability to defend oneself, family and property, is much more critical in the poor and minority neighborhoods ravaged by crime and without adequate police protection. Id.; Don B. Kates, Handgun Control: Prohibition Revisited, Inquiry, Dec. 1977, at 21. However, citizens have no right to demand or even expect police protection. Courts have consistently ruled "that there is no constitutional right to be protected by the state against being murdered by criminals or madmen."Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). Furthermore, courts have ruled that the police have no duty to protect the individual citizen. DeShaney v. Winnebago County Dep’t of Social Serv., 109 S.Ct. 998, 1004 (1989); South v. Maryland, 59 U.S. 39C (1855).

The fundamental civil rights regarding the enjoyment of life, liberty and property, the right of self-defense and the right to keep and bear arms, are merely empty promises if a legislature is allowed to restrict the means by which one can protect oneself and one’s family. This constitutional deprivation discriminates

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against the poor and minority citizen who is more exposed to the acts of criminal violence and who is less protected by the state.

Reducing gun ownership among law-abiding citizens may significantly reduce the proven deterrent effect of widespread civilian gun ownership on criminals, particularly in regard to such crimes as residential burglaries and commercial robberies. Of course, this effect will be most widely felt among the poor and minority citizens who live in crime-ridden areas without adequate police protection.

Constitutional protections, other than those afforded by the right to keep and bear arms, have been and are threatened by the enforcement of restrictive firearms laws. The enforcement of present firearms controls account for a large number of citizen and police interactions, particularly in those jurisdictions in which the purchase or possession of certain firearms are prohibited. Between 1989 and 1998, arrests for weapons carrying and possession numbered between 136,049 and 224,395 annually. FBI Uniform Crime Reports, Crime in the United States Annual Reports (1989-1998).

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The most common and, perhaps, the primary means of enforcing present firearms laws are illegal searches by the police. A former Ohio prosecutor has stated that in his opinion 50% to 75% of all weapon arrests resulted from questionable, if not clearly illegal, searches. Federal Firearms Legislation: Hearings Before the Subcomm. on Crime of the House Judiciary Committee, 94th Cong. 1589 (1975). [hereinafter House Hearings]. A study of Detroit criminal cases found that 85% of concealed weapons carrying cases that were dismissed, were dismissed due to the illegality of the search. This number far exceeded even the 57% percent for narcotics dismissals, in which illegal searches are frequent. Note, Some Observations on the Disposition of CCW Cases in Detroit, 74 Mich. L. Rev. 614, 620-2 1 (1976). A study of Chicago criminal cases found that motions to suppress for illegal evidence were filed in 36% of all weapons charges; 62% of such motions were granted by the court. Critique, On the Limitations of Empirical Evaluation of the Exclusionary Rule, 69 NW. U.L. Rev. 740, 750 (1974). A Chicago ju4ge presiding over a court devoted solely to gun law violations has stated:

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House Hearings, supra, at 508 (testimony of Judge D. Shields).

These suppression hearing figures represent only a tiny fraction of the actual number of illegal searches that take place in the enforcement of current gun laws; as they do not include the statistics for illegal searches that do not produce a firearm or in which the citizen is not charged with an offense. The American Civil Liberties Union has noted that the St. Louis police department, in the mid-1970’s, made more than 25,000 illegal searches "on the theory that any black, driving a late model car has an illegal gun." However, these searches produced only 117 firearms. Kates, Handgun Control: Prohibition Revisited, supra, at 23.

In light of these facts, many of the proponents of gun control have commented on the need to restrict other constitutionally guaranteed rights in order to enforce gun control or prohibition laws. Federal Appellate Judge Malcolm urged the abandonment of the exclusionary rule in order to better enforce gun control laws. Malcolm Richard Wilkey, Why Suppress Valid Evidence?,Wall Street J.., Oct. 7, 1977, at 14. Police Inspector John Domm ca1led for a "reinterpretation" of the Fourth Amendment to allow police to assault strategically located streets, round up pedestrians en masse, and herd them through portable, airport-type gun detection machines. Detroit Free Press, Jan. 26, 1977, at 4. Prominent gun control advocates have flatly stated that "there can be no right to

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privacy in regard to armament." Norville Morris and Gordon Hawkins, The Honest Politician’s Guide to Crime Control 69 (1970).

However, statistics and past history show that many millions of otherwise law-abiding Americans would not heed any gun ban. One should consider America’s past experience with liquor prohibition. Furthermore, in many urban neighborhoods, especially those of poor blacks and other minorities, the possession of a firearm for self-defense is often viewed as a necessity in light of inadequate police protection.

Federal and state authorities in 1975 estimated that there were two million illegal handguns among the population of New York City. Selwyn Raab, 2 Million Illegal Pistols Believed Within the City, N.Y. Times, Mar. 2, 1975, at 1, (estimate by BATF); N.Y. Post, Oct. 7, 1975, at 5, col. 3 (estimate by Manhattan District Attorney). In a 1975 national poll, some 92% of the respondents estimated that 50% or more of handgun owners would defy a confiscation law. 121 Cong. Rec. S 189, 1 (daily ed. Dec. 19, 1975).

Even registration laws as opposed to outright bans, measure a high percentage of non-compliance among the citizenry. In regard to Illinois’ firearm owner registration law, Chicago Police estimated the rate of non-compliance at over two thirds, while statewide non-compliance was estimated at three fourths. In

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1976, Cleveland city authorities estimated the rate of compliance with Cleveland’s handgun registration law at less than 12%. Kates,supra, Handgun Control: Prohibition Revisited, at 20 n.1. In regard to citizens’ compliance with Cleveland’s "assault gun" ban, a Cleveland Police Lieutenant stated: "To the best of our knowledge, no assault weapon was voluntarily turned over to the Cleveland Police Department ... considering the value that these weapons have, it certainly was doubtful individuals would willingly relinquish one." Associated Press, Cleveland Reports No Assault Guns Turned In, Gun Week, Aug. 10, 1990, at 2.

In response to New Jersey’s "assault weapon" ban, as of the required registration date, only 88 of the 300,000 or more affected weapons in New Jersey had been registered, none had been surrendered to the police and only 7 had been rendered inoperable. Masters, Assault Gun Compliance Law, Asbury Park Press, Dec. 1, 1990, at 1. As of November 28, 1990, only 5,150 guns of the estimated 300,000 semiautomatic firearms banned by the May 1989 California "Assault Gun" law had been registered as required. Jill Walker, Few Californians Register Assault Guns, Washington Post, Nov. 29, 1990, at A27.

These results suggest that the majority of otherwise law abiding citizens will not obey a gun prohibition law; much less criminals, who will disregard such laws anyway. It is ludicrous to believe that those who will rob, rape and murder will

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turn in their firearms or any other weapons they may possess to the police or be deterred from possessing them or using them by the addition of yet another gun control law to the 20,000 plus that are already in effect in the United States. James D. Wright, Peter H. Rossi and Kathleen Daly, Under the Gun: Weapons, Crime and Violence in America 244 (1983).

A serious attempt to enforce a gun prohibition would require an immense number of searches of residential premises. Furthermore, the bulk of these intrusions will, no doubt, be directed against racial minorities, whose possession of arms the enforcing authorities may view as far more dangerous than illegal arms possession by other groups.

Tonso, supra, at 25.

Civil rights standards are already bearing the repercussions of the actions of overzealous gun prohibitionists. Take for instance the development of a new and lesser standard of constitutional protection in regard to tenants in public housing

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facilities.

The Richmond Housing Authority has banned the possession of all firearms, whether operable or not, by tenants in public housing projects. Richmond Tenants Org. v. Richmond Dev. & Hous. Auth., No. C.A. 3:90CV00576 (E.D. Va. Dec. 3, 1990). In 1988, the Chicago Housing Authority (CHA) and the Chicago Police Department (CPD) enacted and enforced an official policy, Operation Clean Sweep, which applied to all housing units owned and operated by the CHA, the purpose of which was the confiscation of firearms and illegal narcotics. Complaint, Rose Summeries, et al. v. Chicago Housing Authority, et al., Case No. 88C 10566 (N.D. Ill. Nov. 30, 1988). The warrantless search policy consisted of indiscriminate random sweep searches, using metal detectors, of the CHA tenants’ residences and personal effects found therein, and the detention and search of residents and guests, all without warning and without probable cause or reasonable articulate suspicion. CHA tenants who objected or attempted to interfere with these warrantless searches were arrested. Id. at 78.

Of course, all of the CHA tenants were poor, and the vast majority of them were hispanic or black. Once again, oppressive firearms laws were used to facilitate the deprivation of the constitutional rights of those minorities.

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CONCLUSION

Gun control Laws like the one at issue in this case (18 U.S.C. 922(g)(8)) bear especially hard on the poor and minorities, who are more likely be unrepresented by counsel at legal hearings (as the Defendant, Dr. Emerson was), and therefore less likely to be able to resist entry of a factually baseless TRO. They are also likely to be caught unawares by a law which (without any notification provided by the court that issues the TRO) felonizes their seemingly-innocent possession of a firearm. And enforcement of gun control laws, like the one at issue, will most likely have a disparate impact upon blacks, other minorities, and the poor.

The judgment below should be affirmed.

Respectful Submitted,
Stefan Bijan Tahmassebi
Attorney for Amicus Curiae

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