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:
For if they were so received, and entitled to
the privileges and immunities of citizens, it
would exempt them from the operations of the
special laws and from the police regulations
which they [the states] considered to be
necessary for their own safety. It would give to
persons of the negro race, who were recognized
as citizens in any one State of the Union, the
right to enter every other State whenever they
pleased, ... [A]nd it would give them the full
liberty of speech in public and in private upon
all subjects upon which its own citizens might
speak; to hold public meetings upon political
affairs, and to keep and carry arms wherever,
they went.
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:
-
Nor can Congress deny to the people the right to
keep and bear arms, nor the right to trial by
jury, nor compel any one to be a witness against
himself in a criminal proceeding.
Id. at 450. Clearly, the Court viewed the right
to keep and bear arms as one of the
Page
5
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.
B. Black Codes, Reconstruction and the
Fourteenth Amendment: A Fundamental Individual
Right to Keep And Bear Arms
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).
Mississippi’s Black Code included the following
provision:
Be it enacted ... [t]hat no freedman, free negro
or mulatto, not in the military and not licensed
so to do by the board of police of his or her
county, shall keep or carry firearms of any
kind, or any ammunition, ... and all such arms
or ammunition shall be forfeited to the
informer...
1866 Miss. Laws ch. 23, § 1, 165 (1865).
Page
6
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
Page
7
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:
And what are the safeguards of liberty under our
form of Government?
Page
8
There are at least, under our Constitution,
three which are indispensable-
-
1. Every man should have a homestead, that is,
the right to acquire and hold one, and the right
to be safe and protected in that citadel of his
love...
-
2.
-
He should have the right to bear arms for the
defense of himself and family and his homestead.
And if the cabin door of the freedman is broken
open and the intruder enters for purposes as
vile as were known to slavery, then should a
well-loaded musket be in the hand of
the..occupant to send the polluted wretch to
another world, where his wretchedness will
forever remain complete; and
-
3. He should have the ballot...
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.
Senator Howard.. . explicitly invoked "the right
to keep and bear arms" in his important speech
cataloguing the "personal rights" to be
protected by the Fourteenth Amendment. Howard
and others may have been influenced by the
antebellum constitutional commentator William
Rawle, who had argued in his 1825 treatise that
the Second Amendment as written limited both
state and federal government...
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)).
[I}t is abundantly clear that the Republicans
wished to give constitutional sanction to
states’ obligation to respect such key
provisions as freedom of speech, the right to
bear arms, trial by impartial jury.. . . The
Freedman’s
Page
9
Bureau had already taken steps to protect these
rights, and the Amendment was deemed necessary,
in part, precisely because every one of them was
being systematically violated in the South in
1866.
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:
That whoever shall, without due process of law,
by violence, intimidation, or threats, take away
or deprive any citizen-of the United States of
any arms or weapons he may have in his house or
possession for the defense of his person,
family, or property, shall be deemed guilty of a
larceny thereof, and be punished as provided in
this act for a felony.
Cong. Globe, 42nd Cong., 1st Sess. 174 (1871)
(emphasis added).
Representative Butler explained the purpose of
this provision:
Page
10
Section 8 is intended to enforce the well-known
constitutional provision guaranteeing the right
in the citizen to ‘keep and bear arms,’ ... .
This provision seemed to your committee to be
necessary, because they had observed that,
before these midnight marauders made attacks
upon peaceful citizens, there were very many
instances in the South where the sheriff of the
county had preceded them and taken away the arms
of their victims. This was especially noticeable
in Union County, where all the negro population
were disarmed by the sheriff only a few months
ago under the order of the judge ... ; and then,
the sheriff having disarmed the citizens, the
five hundred masked men rode at night and
murdered and otherwise maltreated the ten
persons who were there in jail in that county.
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).
The [Reconstruction] Congressmen of this period
were hardly interested in strengthening the
state militias ... or in reinforcing states’
rights. The Congressional concern about the
constitutional right to keep and bear arms was
plainly a concern about the self-defense rights
of individual citizens, especially freedmen.
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
Page
11
commented, the focus of the Second Amendment had
changed:
In short, between 1775 and 1866 the poster boy
of arms morphed from the Concord minuteman to
the Carolina freedman. The Creation motto, in
effect, was that if arms were outlawed, only the
central government would have arms. In
Reconstruction a new vision was aborning: when
guns were outlawed, only the Klan would have
guns. This idea, focusing on private violence
and the lapses of local government rather than
on the public violence orchestrated by central
soldiers, is far closer to the unofficial motto
of today’s National Rifle Association, "When
guns are outlawed, only outlaws will have guns."
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
Page
12
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).
Page
13
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.
D. United States v. Cruikshank
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
Page
14
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
Page
15
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.
E. Gun Control in the Twentieth Century
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:
To exclude all pistols, however, is not a
regulation, but a prohibition, of arms which
come under the designation of arms which the
people are entitled to bear. This is not an idle
or an obsolete guaranty, for there are still
localities, not necessary to mention, where
great corporations, under the guise of detective
agents or private police, terrorize their
employees by armed force. If the people are
forbidden to carry the only arms within their
means, among them pistols, they will be
completely at the mercy of these great
plutocratic
Page
16
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
Page
17
disarm the city’s Italian population. The
Sullivan law was designed to
strike hardest at the foreign-born element ... .
As early as 1903 the authorities had begun to
cancel pistol permits in the Italian sections of
the city. This was followed by a state law of
1905 which made it illegal for aliens to possess
firearms ‘in any public place’. This provision
was retained in the Sullivan law.
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.
Page
18
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."
Page
19
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,
permits are automatically denied... to wives who
don’t have their husband’s permission,
homosexuals, and non-voters .... As one of my
students recently learned, a personal
‘interview’ is now required for every St. Louis
application. After many delays, he finally got
to see the sheriff who looked at him only long
enough to see that he wasn’t black, yelled ‘he’s
alright’ to the permit secretary, and left.
Don B. Kates, Jr., On Reducing Violence or
Liberty, 1976 Civ. Liberties Rev. 44,
Page
20
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.
New York City permits are issued only to the
very wealthy, the politically powerful, and the
socially elite. Permits are also issued to:
private guard services employed by the very
wealthy, the banks, and the great corporations;
to ward heelers and political influence
peddlers;...
Kates, Introduction, in Restricting
Handguns: the Liberal Skeptics Speak Out,
supra, at 5.
A. By Prohibiting the Possession of Firearms,
the State Discriminates Against Minority and
Poor Citizens
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
Page
21
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
among families maintained by a woman, the
poverty rate for blacks was 51%, compared with
24% for their white counterparts in 1977 ... .
Families maintained by a woman with no husband
present have compromised an increasing
proportion of both black families and white
families in poverty; however, families
maintained by a woman have become an
overwhelming majority only among poor black
families .... About 60% of the 7.7 million
blacks below the poverty line in 1977 were
living in families maintained by a black woman.
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
Page
22
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
Page
23
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.
B. The Enforcement of Gun Prohibitions Spur
Increased Civil Liberties Violations, Especially
in Regard to Blacks and Other Minorities.
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).
Page
24
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:
The primary area of contest in most gun cases is
in the area of search and seizure ... .
Constitutional search and seizure issues are
probably more regularly argued in this court
than anywhere in America ... . More than half
these contested cases begin with the motion to
suppress ... these arguments dispose of more
contested matters than any other.
Page
25
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
Page
26
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
Page
27
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
Page
28
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.
As civil liberties attorney Kates has observed,
when laws are difficult to enforce, "enforcement
becomes progressively haphazard until the last
of the laws are used only. against those who are
unpopular with the police." Of course
minorities, especially. minorities who don’t
‘know their place’, aren’t likely to be popular
with the police, and those very minorities, in
the face of police indifference or perhaps even
antagonism, may be the most inclined to look to
guns for protection guns that they can’t acquire
legally and that place them in jeopardy if
possessed illegally. While the intent of such
laws may not be racist, their effect irost
certainly is.
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
Page
29
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.
Page
30
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
Page
31
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