An Open Memorandum to Law and History Students

by Sean Oberle
Analysis@KeepAndBearArms.com

January 9, 2001

Distribution permitted and encouraged, especially to the subjects of this memo

TO:

Law, history and other students considering entry in the Violence Policy Center (VPC) 2002 Alexander Hamilton Second Amendment Writing Contest.

TOPICS:

Doing complete research for your essay about U.S. v Emerson, understanding the sponsor/judge of the contest and acquiring a more complete bibliography.

I. Doing complete research

1) VPC has provided you with a tiny, one-sided list (4 court cases and 6 articles/books) of suggested sources seemingly designed to tilt your research to its desired conclusion -- that the Second Amendment does not protect a right of individuals.

2) This research nudge by VPC is understandable given its goals (see item II), which are in opposition to the individual-right interpretation. However, intellectual honesty demands that you look beyond (see item III) this skewed, limited list in meeting VPC's instructions to:

"critically [examine] the decision of the U.S. Court of Appeals for the Fifth Circuit in United States v. Emerson, No. 99-10331, 2001 U.S. App. LEXIS 22386 (October 16, 2001), in light of judicial precedent and historical and legal scholarship on the Second Amendment to the U.S. Constitution."

II. Understanding the sponsor

1) VPC is a legislative and policy advocacy group. It takes a public stance on gun control more extreme than even that of The Brady Campaign to End Handgun Violence (formerly called Handgun Control Inc.). For example, while The Brady Campaign does not openly call for an outright ban of handguns, VPC does.

2) VPC staff members will judge your entry along with other unnamed judges picked by VPC. This arrangement is akin to someone with a vested interest in a court case both selecting the jury and sitting on it. Approach this contest with the same care that you would a Roe v. Wade contest sponsored -- and judged -- by the Christian Coalition or Planned Parenthood. You must consider: Will VPC judge your entry for its quality or for its agreement with VPC’s position?

3) VPC, in pursuit of its agenda, has shown notorious disregard for the truth. For example, it recently issued a “report” (Voting from the Rooftops) that claimed gun makers provided .50 caliber weapons to Osama Bin Laden's terror network. The truth is that Barrett provided the weapons to Afghan rebels in the late 1980s with the approval and assistance of the United States government. Should you win this contest, your reputation will be tied to VPC. (For articles concerning the VPC truthfulness, including the Barrett see www.KeepAndBearArms.com/vpc.)

III. Suggested bibliography

Following are lists of resources that you should consider beyond VPC's suggestions. While I do not repeat the six articles/books cited by VPC, I do repeat the four court cases it cites. While I oppose VPC’s stance on the Second Amendment, I include some references that agree with VPC's stance.

1) Books addressing the Second Amendment

Laurence Tribe, American Constitutional Law, 3d ed. (1999). Note: it is important that you access the 1999 edition because Professor Tribe did not address the Second Amendment in earlier editions except brief footnote mention.

David T. Hardy, Origins and Development of the Second Amendment: A Sourcebook (1986).

Robert J. Cottrol, Gun Control and the Constitution: The Courts, Congress, and the Second Amendment (1993).

Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1994).

Joyce Lee Malcolm, To Keep and Bear Arms: The Origin of an Anglo American Right (1994).

Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (1994).

David E. Young, The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government & an Armed Populace (1995).

Joseph L. Bass, A Little Handbook on the Second Amendment: What the American aristocracy Does Not Want You to Know (1999).

Saul Cornell, Robert E. Shalhope, Whose Right to Bear Arms Did the Second Amendment Protect? (2000).

Andrew Carlson, The Antiquated Right: An Argument for the Repeal of the Second Amendment (2001).

2) Law review articles on the Second Amendment

[Consider also David Kopel’s "Comprehensive Bibliography of the Second Amendment in Law Reviews": http://www.saf.org/AllLawReviews.html]

David T. Hardy, "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9 Harv. J. L. & Pub. Policy 559 (1986).

David T. Hardy, "The Second Amendment and the Historiography of the Bill of Rights," 4 Journal of Law and Politics 1-62 (1987).

Sanford Levinson, "The Embarrassing Second Amendment," 99 Yale L.J. 637 (1989).

Keith A. Ehrman & Dennis A. Henigan, "The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?" 15 U. Dayton L. Rev. 5 (1989).

Robert Dowlut, "Federal and State Constitutional Guarantees to Arms," 15 Dayton L. Rev. 1 (1989).

Dennis Henigan, "Arms, Anarchy, and the Second Amendment," Valparaiso L. Rev. Vol. 16, No. 1 (1991).

David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," 101 Yale L.J. 551 (1991).

Robert Cottrol & Raymond T. Diamond, "The Second Amendment: Toward an Afro-Americanist Reconsideration," 80 Georgetown L.J. 309 (1991).

Don B. Kates, "The Second Amendment and the Ideology of Self-Protection," 9 Const. Comm. (1992).

Michael J. Quinlan, "Is There a Neutral Justification for Refusing to Implement the Second Amendment or is the Supreme Court Just "Gun Shy?", 22 Cap. U. L.Rev. 641 (1993).

William Van Alstyne, "The Second Amendment and the Personal Right to Bear Arms," Duke L. J. (1994).

William Van Alstyne, "The Second Amendment and the Personal Right to Bear Arms," Duke L. J. (1994).

Stephen P. Halbrook, "Congress Interprets the Second Amendment: Declarations by A Co-Equal Branch on the Individual Right to Keep and Bear Arms," 62 Tenn. U. L. Rev. 597 (1995).

David B. Kopel, "It Isn't About Duck Hunting: The British Origins of the Right to Arms," 93 Mich. L.R. 1335 (1995).

Andrew Herz, "Gun Crazy," 75 B.U. L. Rev. 57 (1995).

David B. Kopel, Clayton Cramer, Scott Hattrup. "A Tale of Three Cities: The Right to Bear Arms in State Courts," 68 Temple Law Review 1177 (1995).

Glenn Harlan Reynolds, & Don B. Kates, "The Second Amendment and States' Rights: A Thought Experiment," 36 Wm. & Mary L. Rev. 1737 (1995).

Robert Cottrol & 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 Jurisprudence?”, 70 Chi.-Kent L.R. 1307 (1995).

Clayton E. Cramer, "The Racist Roots of Gun Control," 4 Kansas J. of L. & Pub. Pol. 17 (1995).

Nelson Lund, "The Past and Future of the Individual's Right to Arms," 31 Ga. L. Rev. 1 (1996).

Randy Barnett, Don B. Kates, "Under Fire: The New Consensus on the Second Amendment," 45 Emory L.J. 1140 (1996).

Brannon P. Denning, "Can the Simple Cite be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment," 26 Cumb. L. Rev. 961 (1996).

L.A. Powe, "Guns, Words, and Constitutional Interpretation," 38 William & Mary L. Rev. 1131 (1997).

Eugene Volokh, "The Commonplace Second Amendment," 73 NYU L. Rev. 793 (1998);
David C. Williams, "The Unitary Second Amendment," 73 NYU L Rev. (1998), reply to Volokh;
Eugene Volokh, "The Amazing Vanishing Second Amendment," 73 NYU L. Rev. 831 (1998), reply to Williams.

David Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev., 1359 (1998).

3) Supreme Court cases

United States v. Cruikshank, 92 U.S. 542 (1875).

Presser v. Illinois, 116 U.S. 252 (1886).

Miller v. Texas, 153 U.S. 535 (1894).

U.S. v. Miller, 307 U.S. 174 (1939) [cited by VPC].

Lewis v. United States, 445 U.S. 55 (1980).

US v. Verdugo-Urquidez, 494 U.S. 259, 264-66 (1990).

4) Lower court cases

Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom., Velazquez v. U.S., 319 U.S. 770 (1943).

U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943).

U.S. v. Gross, 313 F.Supp. 1330 (S.D. Ind. 1970), aff'd on other grounds, 451 F.2d 1355 (7th Cir. 1971).

Stevens v. United States, 440 F.2d 144 (6th Cir 1971).

U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971).

U.S. v. Johnson, Jr., 441 F.2d 1134 (5th Cir. 1971).

U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971).

U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971).

U.S. v. Cody, 460 F.2d 34 (8th Cir. 1972).

U.S. v. Kraase, 340 F.Supp. 147 (E.D. Wis. 1972).

U.S. v. Day, 476 F.2d 562 (6th Cir. 1973).

U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974).

U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975).

U.S. v Bowdach, 414 F. Supp. 1346 (D.S. Fla 1976), aff'd, 561 F.2d 1160 (5th Cir. 1977).

U.S. v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied, 426 U.S. 948 (1976).

U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978).

U.S. v. Kozerski, 518 F.Supp. 1082 (D.N.H.1981), cert. denied, 469 U.S. 842 (1984).

Thompson v. Dereta, 549 F.Supp. 297 (D. Utah 1982).

Vietnamese Fishermen's Association v. Knights of Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex. 1982) [cited by VPC].

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983) [cited by VPC].

U.S. v. Nelson, 859 F.2d 1318 (8th Cir. 1988).

Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071 (S.D. Ala. 1989), aff'd, 894 F.2d 412 (11th Cir. 1990).

United States v. Haney, No. 00-6129, 2001 U.S. App. LEXIS 19324 (10th Cir. Aug. 29, 2001) [cited by VPC].

Sean Oberle is a Featured Writer and gun control analyst for KeepAndBearArms.com. He can be reached at Analysis@KeepAndBearArms.com. View other articles from him at http://www.KeepAndBearArms.com/Oberle.