Thursday, May 09, 2002

[Eugene Volokh, 7:53 PM]
FOOTNOTES ON MY WALL STREET JOURNAL SECOND AMENDMENT OP-ED: In the future, all newspapers, or at least their Web sites, will insist that their authors provide links to sources on which they rely -- or at least allow authors to do this. Unfortunately, for now, I have to provide these links here, rather than in my Wall Street Journal / opinionjournal.com piece (though thanks to opinionjournal for linking to this post). Here they are:

1. People calling Ashcroft "radical" for his stance: See the L.A. Times ("scholars and gun-control advocates said they were alarmed because they believe the 'radical' shift in position threatens to undermine a wide range of gun laws already on the books"); Violence Policy Center, VPC: Ashcroft Decision Cloaked in Secrecy, U.S. NEWSWIRE, Aug. 2, 2001 ("the VPC['s] . . . 'Shot Full of Holes: Deconstructing John Ashcroft's Second Amendment' . . . exposes Ashcroft's Second Amendment letter as a shoddy piece of legal and historical research that fails to support its radical 'individual rights' conclusion").
   
   
2. Violence Policy Center being anti-gun: See, e.g., Josh Sugarmann (executive director of the Violence Policy Center), Dispense With the Half Steps and Ban Killing Machines, Houston Chronicle, Nov. 5, 1999, at 45 ("A gun-control movement worthy of the name would insist that President Clinton move beyond his proposals for controls . . . and immediately call on Congress to pass far-reaching industry regulation like the Firearms Safety and Consumer Protection Act . . . [which] would give the Treasury Department health and safety authority over the gun industry, and any rational regulator with that authority would ban handguns."); Violence Policy Center, Ban Handguns Now.
   
   
3. Quotes from the Violence Policy Center: Linda Greenhouse, U.S., in a Shift, Tells Justices Citizens Have a Right to Guns, N.Y. Times, May 8, 2002 (registration required).
   
   
4. Joseph Story.
   
   
5. Thomas Cooley.
   
   
6. William Blackstone.
   
   
7. Framing-era documents confirming the individual rights view: See the discussion of the state calls for proposed constitutional amendments, as well as of the right to bear arms provisions in state constitutions, in this congressional testimony.
   
   
8. Militia Act of 1792.
   
   
9. Militia Act of 1956 (the currently effective one).
   
   
10. "Virtually no court or commentator . . ." See David Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359.
    
    
11. Firearms Owners' Protection Act. See Pub. L. 99-308 sec. 1(b), printed at 18 U.S.C. § 921 Statutory Note ("The 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; and additional legislation is required to reaffirm the intent of the Congress . . . that 'it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap-shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.'").
    
    
12. Humphrey and Kennedy: See Senator Hubert H. Humphrey, Know Your Lawmakers, Guns, Feb. 1960, at 4 ("Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to bear arms."); John F. Kennedy, Know Your Lawmakers, Guns, April 1960, at 4 (discussing "the right of each citizen 'to keep and bear arms'").
    
    
13. Supreme Court cases. See also David Kopel, 18 St. Louis University Public Law Review 99 (1999).
    
    
14. United States v. Miller.
    
    
15. State constitutions: Sorted by state and by date.
    
    
16. D.C. gun ban: D.C. Code §§ 6-2311, 6-2312, 6-2372.
    
    
17. D.C. Court of Appeals case upholding the gun ban: Sandidge v. United States, 520 A.2d 1057 (1987).
    
    
18. "May actually facilitate the enactment of modest gun controls:" I first got this idea from Bob Cottrol, see Robert Cottrol & Raymond Diamond, Second Amendment Cannot Be Ignored, American Lawyer, May 27, 1991, at 24 (“If the courts were to send [a] . . . strong signal, backed by the legal profession and civil-liberties organizations, that they intended to enforce the Second Amendment, then gun-control measures could be debated on the utility of proposed measures and without the fear that gun-control measures are steps toward ultimate prohibition.”). See also Wendy Kaminer, Gun Shy, American Prospect, Jan. 28, 2002 (“Consider the practical and political benefits of recognizing a basic right to own a gun. . . . [O]pposition to gun controls might decrease if gun owners did not fear that every restriction on their rights was leading down a slippery slope toward prohibition. . . . To restrict gun rights effectively, we may first have to acknowledge that they exist.”).