Doctors, amicus curiae, Printz, Mack v. US
The Potowmack Institute
Supreme Court of the United States
October Term, 1995
No. 95-1478, 95-1503
SHERIFF RICHARD MACK,
UNITED STATES OF AMERICA,
AMICUS BRIEF ON BEHALF OF DOCTORS FOR
INTEGRITY IN POLICY RESEARCH, DOCTORS FOR
RESPONSIBLE GUN OWNERSHIP, AND THE
LAWYER’S SECOND AMENDMENT SOCIETY IN
SUPPORT OF PETITIONER SHERIFF RICHARD MACK
INTEREST OF THE AMICI
All parties in this appeal have graciously consented
to the filing of this brief which supports the
position of Petitioner Sheriff Richard Mack. These
consents have been filed with the Clerk of the Supreme
1. Amicus DOCTORS FOR INTEGRITY IN PUBLIC RESEARCH
Doctors for Integrity in Policy Research, Inc. (DIPR),
a non-profit corporation, is a national "think tank"
of medical school professors, researchers, and
practicing physicians who are committed to exposing
biased and incompetent research, editorial censorship,
and unsound public policy. DIPR con-
ducts review research, publishes and publicizes its
findings, and, to promote sound public policy,
testifies before Congressional and other legislative
committees and participates in litigation.
Though DIPR has decried the politicization of AIDS
research, pharmaceutical "ghost writing" of research
for "name" authors, and fabrication of breast cancer
research data, nowhere is substandard science more
prevalent than in the medical literature on guns and
violence. DIPR’s re. search projects have been
published in the peer-reviewed medical literature. It
is also active in exposing the waste of tax payer
money not only in funding of substandard and
politicized research, but also in the illegal use of
tax money for political lobbying and diversion of
funds by the Centers for Disease Control’s National
Center for Injury Prevention and Control.
2. Amicus DOCTORS FOR RESPONSIBLE GUN
Doctors for Responsible Gun Ownership (DRGO) is a
nationwide network of physicians and other health
professionals who support the safe and lawful use of
firearms. DRGO is a project of The Claremont
Institute, a policy analysis "think tank" in
Claremont, California. DRGO’s members come from
academia, the military, private practice, and medical
school student bodies. DRGO’s mission is to bring
balance to the medical debate on firearms. It brings
to public and medical forums the abundant scientific
evidence which militates in favor of safe and prudent
use of firearms by law-abiding citizens.
3. Amicus THE LAWYER’S SECOND AMENDMENT SOCIETY
THE LAWYER’S SECOND AMENDMENT SOCIETY (LSAS) is a
non-profit California corporation head-
quartered in Encino, CA. LSAS fosters open, rigorous
discussion of the constitutional right to arms. Its
purposes include sponsoring legal, historical and
philosophical research on the topic and stimulating
greater public knowledge and understanding of the
Second Amendment. The LSAS’s specific activities
include writing articles, and conducting research for
publication in legal and other periodicals, providing
speakers on the issue of the individual right to keep
and bear arms, publishing its newsletter, "The Liberty
Pole," and participating in litigation regarding the
Firearms in the hands of Americans are overwhelmingly
a net benefit to society. The vast weight of the
evidence shows firearms in the hands of law-abiding
citizens actually reduce violence and crime.
Due to the enormous benefits of firearms in society in
terms of the lives saved, injuries prevented, medical
costs averted, and property protected by citizens with
firearms, this Court is respectfully requested to
consider that, not only is the Brady Law offensive to
the Tenth Amendment, it also seriously hampers the
citizens’ inalienable right of self-defense.
Amid will demonstrate the blatant falsehood of
repeated claims that the Brady Law has prevented
"Sixty thousand" criminals from obtaining firearms.
Amici provide this documentation for the sole purpose
of showing, unequivocally, no compelling government
interest justifies the Brady Law. Far from a public
policy disaster, dismantling the Brady Law is a public
GUN CONTROL IS NOT CRIME CONTROL
To place the specifics of the Brady Law in
perspective, the larger perspective of gun control
must be examined. A forthcoming study of 15 years’
data by University of Chicago researchers shows that
"1,570 murders; 4,177 rapes; and over 60,000
aggravated assaults would have been avoided yearly" if
states with restrictive laws would reform those laws
to make it easier for mentally competent, law. abiding
adults to carry concealed handguns for protection
outside the home.
The scholarly literature increasingly vindicates
firearms as "pathogens" of violence, and it exposes
gun control as a "placebo" or "suicide pill," rather
than a "cure" for gun violence.
In fact, the strategy of repackaging gun control as a
"public health" measure
resulted because of the near unanimous recognition,
within the criminological scholarly literature, that
gun control was a failure as crime or violence
Stringent gun control does not, and cannot, keep
firearms out of the hands of willful predators who
ignore laws against drug trafficking, rape, and
murder. Indeed, that is why they
are called "criminals." By whatever increment any
firearm control measure inconveniences criminals,
those criminals are not (the wishful and repeated
claims of gun control advocates to the contrary
notwithstanding) "prevented from obtaining guns." They
are merely &s~aced into the fast and uncontrolled
illegal gun market.
Predators who sell crack by the gram or heroin by the
kilogram, can quickly find a black-market gun, and
they can certainly afford the high prices for such
firearms, without the inconvenience of a background
check or waiting period. Gun control merely impedes
gun purchases by law-abiding citizens, who ultimately
become the predators’ victims. Victim disarmament does
not saves lives, it costs lives. Quite simply, gun
control is a counter-productive, even deadly, failure.
In short, to the extent the Brady Law impedes the
access of law-abiding citizens to the protection of
firearms, the Brady Law simply helps criminals, and it
assures their continuing job safety. The much
ballyhooed "public health approach to gun violence"
merely spins "new clothes [a lab coat] for the
emperor," offering an insidiously amoral,
value-neutral perspective on gun deaths.
FIREARMS ARE NOT A "MEDICAL ISSUE"
The gun control advocacy literature from the "medical
shows that fully two-thirds of gun homicide
"victims" are, in fact, drug dealers and their
customers who wreak tremendous human and economic
havoc upon society. In failing to account for this,
the medical literature cannot and does not honestly
assess these deaths.
Whether measured in human or economic terms, the
peer-reviewed cost-benefit analysis finds an
overwhelming net benefit of guns in our society.
Significantly more lives and money are saved using
firearms, than are lost using them.
Without exception, all 14 studies of defensive firearm
use suggest Americans use firearms defensively from 1
million to 2.5 million times annually.
The largest-scale, most comprehensive study of protective
firearm use, Kleck & Gertz’s National Self-Defense
Survey, suggests about 2.5 million protective uses by
adult Americans against human attackers each year.
This means lives saved, injuries prevented, medical
costs averted, and property protected.
About 400,000 of those who used firearms for
self-defense believe they would have lost their lives
had they not had a firearm for protection. Even if 90
percent of these firearm defenders were mistaken, the
number of lives saved using firearms still outnumbers
the lives taken using firearms by thousands. In some
98 percent of these defensive uses, the gun is not
even fired. In only about 0.1 percent (one-in-a.
thousand) of the protective uses is the attacker
The analysis set forth above exposes the fundamental
flaw in research sponsored by the Centers for Disease
Control (CDC) which purportedly shows "a gun owner is
43 times more likely to kill a family member than an
In fact, firearm defenders apprehend or repel
attackers one thousand times as often as they kill
them. The flawed and politicized nature of the CDC’s
much publicized research has been repeatedly exposed
in the peer-reviewed and peer-acclaimed scientific
and before Congress.
In a front page investigation on May 1, 1996, the Wall
exposed the CDC’s campaign of strategic factual
misrepresentation regarding AIDS research. The
CDC has waged a similar campaign of strategic lies
regarding guns and violence.
Amici present this data to encourage this Court
to view the flawed and politicized "science" that has
polluted the public debate, media, and common wisdom
regarding firearms in our society with a healthy
skepticism. Such rigorous objectivity is essential in
examining the key point of this brief: that not only
does the Brady Law violate the Tenth Amendment, it is
useless, and perhaps even dangerously
PIERCING THE FALSE CLAIMS OF BRADY LAW
President Clinton asserted "Sixty thousand people with
criminal records have not been able to buy handguns
because of the passage of the Brady Bill,"
and the law "has made us a safer country."
The President’s remarks encapsulate all that is wrong
with claims of the Brady Law’s supposed benefits. Even
the Government Accounting Office (GAO) survey,
the source of President Clinton’s projected figure,
stated its Brady Law sample data could not be
projected to the nation at large (as
President Clinton did) to arrive at the "Sixty
thousand" figure. The GAO survey shows that
approximately half of the individuals prevented from
purchasing firearms by Brady Law background checks,
were not legally disqualified from firearm ownership.
Significantly, the GAO did not conduct a national
survey of law enforcement officials to arrive at its
figures. Instead, it judgmentally selected and
surveyed 20 law enforcement jurisdictions. The results
of GAO’s study, therefore, are not projectable to the
universe of denials nationwide.
Unfortunately, Brady Law advocates ignore this
important caveat from their own data source.
Additionally, such claims that "sixty thousand"
illegal gun purchases were thwarted by the Brady Law
are based upon denials in the entire nation, including
the Brady-exempt states. However, Brady Law advocates
cannot honestly claim the benefits obtained in states
exempt from Brady Law provisions. The GAO survey found
approximately half of Brady Law background check
denials, the socalled "criminals," were erroneous.
Half of these alleged "criminals" were flagged due to
administrative errors (such as forms prepared or
mailed incorrectly, innocents whose names are similar
to felons, non-disqualifying misdemeanor traffic
convictions, or other trivial "crimes" such as fishing
without a license and failure to license dogs).
Similarly, data from the National Institute of Justice
and from the Bureau of Alcohol, Tobacco and Firearms
suggest that, of those actual criminals caught by the
Brady Law background checks, firearm purchase was not
prevented; true criminals were merely displaced from
the legal retail market into the illegal black market
unaffected by the Brady Law.
Only some seven percent of criminals’ handguns arc
obtained from retail sources, so controls on retail
firearm sales cannot be expected to significantly
reduce criminals’ access to firearms. Despite
exaggerated claims by the administration and gun
regarding the success of the Brady Law, the Bureau of
Alcohol, Tobacco and Firearms (BATF) has acknowledged
what little evidence there is, is only anecdotal.
Indeed, of the actual felons identified by Brady Law
background checks during the first 1½ years since it
was enacted, only seven had been successfully
prosecuted (four received probation and three received
prison sentences of between one to two years).
Since those denied the ability to purchase a firearm
by the Brady Law are merely displaced into the "black
market," the Brady Law’s minimal benefit is really no
benefit at all. Even President Clinton, himself a
staunch defender of the
Brady Law, had to admit the ultimate failure of that
law: "It is true that you can still buy an illegal gun
with cash in the streets."
The real purveyors of violence, the vicious predators
with lifelong histories of violence are the criminals
untouched by the Brady Law or other firearm laws. A
meticulous scholarly analysis published in The Journal
of Criminal Law & Criminology
reviewed these and other problems that expose the
Brady Law not as a political boon, but as a public
There is no persuasive evidence that the Brady Law has
made society safer. Prior to implementation of the
Brady Law in 1993, FBI Uniform Crime Report data
showed that, in the 24 states and the District of
Columbia where laws already existed to delay handgun
purchases, violent crime was 34.6 percent higher,
robbery was 76.9 percent higher, aggravated assault
was 21.6 percent higher, and homicide was 3.7 percent
Following the implementation of the Brady Law, FBI
Uniform Crime Report data from 1993 and 1994 show
homicide dropped about twice as much in the 22 states
exempt from the provisions of the Brady Law (a 7.3
percent drop from 1993 to 1994) in comparison with the
28 states subject to the provisions of the Brady Law
(a 3.8 percent drop from 1993 to 1994).
Total violent crime dropped exactly twice as much in
the 22 states exempt from the provisions of the Brady
Law (a 4.8 percent drop from 1993 to 1994) in
comparison with the 28 states subject to the
provisions of the Brady Law (a 2.4 percent drop from
1993 to 1994).
Robbery dropped over three times as much in the 22
states exempt from the provisions of the Brady Law (an
8.8 percent drop from 1993 to 1994) in comparison with
the 28 states subject to the provisions of the Brady
Law (a 2.7 percent drop from 1993 to 1994).
Since most high-crime states and the District of
Columbia were exempt from Brady Law provisions, the
Brady Law would not have been expected to have had an
effect on these jurisdictions. Instead, the Brady Law
imposed background check and waiting period
requirements upon traditionally low-crime states, a
priori reason to have low expectations for Brady
At present, the District of Columbia and most
high-crime cities are exempt from the Brady Law
waiting period. Ten such high-crime cities (New York
City, Chicago, Los Angeles, Detroit, District of
Columbia, Baltimore, St. Louis, Phoenix, Atlanta,
Richmond) accounted for 23 percent of 1994 US
"If it saves one life," but costs many lives, what
then? The Brady Law is a failure, and predictably so.
In short, FBI Uniform Crime Report data from 1993 and
actually show the 22 states exempt from Brady Law
provisions are safer than the 28 states subject to
Brady Law provisions.
Contrary to the assertions of some advocates that
dismantling the Brady Law will result in an epidemic
of violence or a public policy disaster, the evidence
suggests striking the Brady Law will be a benefit to
the public safety.
Pick up any newspaper on any given day, and there will
undoubtedly be a crime-related article which
illustrates amici's contention that innocents
suffer and die when they are denied timely access to
firearms for self defense.
The Brady Law waiting period and the extraordinary
number of Brady background check errors deny timely
access to dozens of thousands of good, needful and
law-abiding people. In so doing, amici contend
the Brady Law costs many more lives than it saves
because it denies or hampers citizens’ inalienable
right to defend themselves, their families, and their
Amici strenuously object to the concept of
citizens having to satisfy qualifications to exercise
their constitutionally guaranteed right to keep and
bear arms. However, if despite these most strenuous
objections, there is to be an infringement of the
right to self-defense and right to keep and bear arms,
amici respectfully suggest this Court let it be
the least intrusive infringement available; namely, an
"instant check" system freely adopted by states,
rather than imposed by the Brady Law’s usurpation of
Tenth Amendment state powers.
On a purely pragmatic level devoid of constitutional
concerns (an unprincipled position we neither adopt
recommend), there are no benefits whatsoever from the
Brady Law except those that are better served by
instant check systems.
Not only is the Brady Law offensive to the Tenth
Amendment, it is a political fraud, a public policy
failure, and it should be dismantled in its entirety.
Dated: August 16, 1996
Steven A. Silver
The Lawyer’s Second Amendment Society
Counsel for Amid Doctors for Integrity In Policy Research, Inc..
Doctors for Responsible Gun Ownership,
The Lawyer’s Second Amendment Society
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