From: owner-utah-firearms-digest@lists.xmission.com (utah-firearms-digest) To: utah-firearms-digest@lists.xmission.com Subject: utah-firearms-digest V2 #114 Reply-To: utah-firearms-digest Sender: owner-utah-firearms-digest@lists.xmission.com Errors-To: owner-utah-firearms-digest@lists.xmission.com Precedence: bulk utah-firearms-digest Thursday, December 3 1998 Volume 02 : Number 114 ---------------------------------------------------------------------- Date: Tue, 01 Dec 1998 16:00:10 -0700 From: "David Sagers" Subject: Fwd: John Lott on "Bogus Gun Lawsuits" (fwd) Received: from wvc ([204.246.130.34]) by icarus.ci.west-valley.ut.us; Tue, 01 Dec 1998 14:51:10 -0700 Received: from fs1.mainstream.net by wvc (SMI-8.6/SMI-SVR4) id OAA05682; Tue, 1 Dec 1998 14:38:09 -0700 Received: from (server@localhost [127.0.0.1]) by fs1.mainstream.net (8.9.1a/8.9.1) with SMTP id QAA20190; Tue, 1 Dec 1998 16:49:44 -0500 (EST) Date: Tue, 1 Dec 1998 16:49:44 -0500 (EST) Message-Id: Errors-To: listproc@mainstream.net Reply-To: pwatson@utdallas.edu Originator: noban@mainstream.net Sender: noban@mainstream.net Precedence: first-class From: Paul M Watson To: Multiple recipients of list Subject: Fwd: John Lott on "Bogus Gun Lawsuits" (fwd) X-Listprocessor-Version: 6.0 -- ListProcessor by Anastasios Kotsikonas X-Comment: Anti-Gun-Ban list Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline - ---------- Forwarded message ---------- Date: Tue, 1 Dec 1998 11:39:45 -0600 (CST) From: John Johnson Reply-To: texas-gun-owners@Mailing-List.net To: undisclosed-recipients: ;, ";;"@Mailing-List.net Subject: Fwd: John Lott on "Bogus Gun Lawsuits" Posted to texas-gun-owners by txjohn47@ix.netcom.com (John Johnson) - ------------------------------------------------------------------------ ---- Begin Forwarded Article ---- Cities Target Gun Makers in Bogus Lawsuits More people are killed by cars; more children drown or die in fires. As Printed in the LA Times 12/1/98 By John R. Lott Jr., a fellow at the University of Chicago Law School. He is author of "More Guns, Less Crime: Understanding Crime and Gun Control Laws" (University of Chicago Press, 1998). Every product has illegitimate uses and undesirable consequences. In 1996 in the U.S., car accidents killed 43,000 people and injured another 3.4 million; 950 children under the age of 15 drowned in pools and while boating; 500 children died in bicycle accidents, and more than 1,000 children died from residential fires. No one is yet proposing that state or city governments should recoup medical costs or police salaries by suing automobile or bicycle companies, pool builders or makers of home heaters. Such suits make as little sense as pool builders suing the government to recoup the health benefits from exercise.=20 But suing manufacturers for any costs cities incur from gun injuries and deaths is exactly the theory behind the lawsuits by Chicago and New Orleans against gun makers. Gun control groups, which are helping organize the litigation, claim that as many as 60 cities will eventually sue. With so many simultaneous suits, the goal is not to win these weak cases in court but to bankrupt legitimate small companies through massive legal costs.=20 Obviously, bad things happen with guns. But the suits ignore that guns also prevent bad things by making it easier for victims to defend themselves. With fewer than 1% of all guns ever used in crimes or causing death or injury, many other products have much higher probabilities of causing harm. Unlike the tobacco suits, gun makers have powerful arguments about the benefits of gun ownership.=20 More than 450,000 crimes, including 10,744 murders, are committed with guns each year. But Americans also use guns defensively about 2.5 million times a year, and 98% of the time merely brandishing the weapon is sufficient to stop an attack.=20 Police are important in reducing crime rates, but they virtually always arrive after a crime has been committed. When criminals confront people, resistance with a gun is by far the safest course of action. Guns help offset the strength differential between male criminals and female victims. The chances of serious injury from an attack are 2.5 times greater for women offering no resistance than for those resisting with guns.=20 My own research has found that increased gun ownership rates are associated with lower crime rates. Poor people in the highest crime areas benefit the most from owning guns. Lawsuits against gun makers will raise the price of firearms, which will most severely reduce gun ownership among the law-abiding, much-victimized poor.=20 A 1996 survey by the National Assn. of Chiefs of Police found that 93% of 15,000 chiefs and sheriffs questioned thought that law-abiding citizens should be able to buy guns for self-defense. If mayors really believe that guns produce no benefits, there is one simple way they can demonstrate this: Disarm their bodyguards. It is hypocritical for mayors to demand that poor people live in high crime areas without being able to own guns, while the mayors would never enter these areas without armed guards.=20 Chicago claims that the gun makers made their weapons attractive to gang members through low price, easy concealability, corrosion resistance, accurate firing and high firepower. Lightweight, concealable guns may help criminals, but they also have helped protect law-abiding citizens and lower crime rates in the 43 states that allow concealed handguns. Women benefit most and also find it easier to use smaller, lightweight guns.=20 The New Orleans suit seeks to hold gun makers liable because accidental deaths are "foreseeable" and not enough was done to make guns safe. It is particularly concerned with accidental deaths involving children and cites three cases in New Orleans since 1992. Nationally, 30 children under 5 and 200 under 15 died from accidental gun deaths in 1996. Yet with 80 million people owning 200 million to 240 million guns, accidental deaths from guns are far less "foreseeable" than from many other products. Gun owners must be very responsible, or such gun accidents would be much more frequent.=20 Allowing the court system to ignore a product's benefits to society is bad enough. Yet even worse is the cynical attempt to file bogus lawsuits and use taxpayers' dollars to impose massive legal costs that render it infeasible for defendants to defend themselves. - - -=20 John R. Lott Jr., a Law and Economics Fellow at the University of Chicago School of Law, Is the Author of "More Guns, Less Crime: Understanding Crime and Gun Control Laws" (University of Chicago Press, 1998) -30- "After a shooting spree, they always want to take the guns away from the people who didn't do it. I sure as hell wouldn't want to live in a society where the only people allowed guns are the police and the military." --William Burroughs "Gun Control: the political AIDS of a free society" --Ian Underwood, 13Sep98 "As Professor Lott discovered, gun ownership deters crime. But what will deter liberals? Certainly not the facts. They have too much invested in their vision of themselves as the saviors of us all." --Thomas Sowell, June 29, 1998 - --=20 John Johnson TXJohn47@ix.netcom.com - -- For help with Majordomo commands, send a message to majordomo@mailing-list.= net with the word help in the message body. - - ------------------------------ Date: Tue, 01 Dec 98 19:11:00 -0700 From: scott.bergeson@ucs.org (SCOTT BERGESON) Subject: FW: Shut the gun registration machine down!! - ---------- Forwarded message ---------- To: texas_net@egroups.com From: spiker Subject: Shut the gun registration machine down!! To All, Today, 11/30/98 is the first day of the new long gun registration scheme. We can shut it down by tying up their phone lines. Call *67 1-877-FBI-NICS or (*67 (877-324-6427) and ask for a press release for your community newspaper. - - ------------------------------ Date: Tue, 01 Dec 98 19:11:00 -0700 From: scott.bergeson@ucs.org (SCOTT BERGESON) Subject: Hypothetical incidents? Try real ... - ---------- Forwarded message ---------- Date: Mon, 30 Nov 1998 05:44:56 -0700 From: "Richard L. Partridge" To: lputah@qsicorp.com, letters@desnews.com It is "overwhelmingly clear" that disarming potential victims will not deter a criminal intent on harming others in a church, a school, or anyplace else. Those who claim that victim disarmament laws will protect us are either woefully ignorant or have ulterior motives. There exists an abundant number of instances of unarmed victims being killed, injured, or taken hostage by criminals who quite obviously care nothing about the law. (The Cody, Wyoming school incident comes immediately to mind.) Politicians who think they can change criminal human nature with a wave of their legislative hand are dangerous. The best deterrent to armed criminals is the knowledge that their victim/s may be armed. I recently lived in Maryland for a year and, as I wrote my Maryland state senator, I felt much safer in Utah where all my neighbors were armed. Richard L. (Dick) Partridge, 1998 Libertarian Candidate Utah State Senate District 24 4480 N. Hwy 38, Brigham City, Ut 84302 435-734-2678 On Sat, 28 Nov 1998 17:40:51 EST FreeUtah@aol.com writes: Limits on guns may pass in 1999 By Bob Bernick Jr. . The poll is on the right side of the page about 1/2 to 3/4 of the way down. I don't think it will let you vote more than once, but if you haven't voted yet, please do. Obviously, if the numbers stay in our favor, they'll never report them, but if any less than 51% of the total respondants vote for no restrictions, you can bet they'll spin it against us like "The majority of respondants favor restricting guns from schools or churches." Please make sure the numbers stay in our favor. It will be one less poll they can goad legislators with and I can pass along good numbers to a friendly legislator to diminish support for futher restrictions. - -- Charles C. Hardy | If my employer has an opinion on | these things I'm fairly certain 801.588.7200 (work) | I'm not the one he'd have express it. "The people of the various provinces are strictly forbidden to have in their possession any swords, bows, spears, firearms, or other types of arms. The possession of these elements makes difficult the collection of taxes and dues, and tends to permit uprising. Therefore, the heads of provinces, official agents, and deputies are ordered to collect all the weapons mentioned above and turn them over to the government." -- Toyotomi Hideyoshi, Shogun, August 29, 1558, Japan. - - ------------------------------ Date: Wed, 2 Dec 1998 17:28:25 -0700 From: chardy@ES.COM (Charles Hardy) Subject: From today's DesNews' OpEd page Wednesday, December 02, 1998 Comparing guns, cars is inaccurate By Mark Johnson Media General News Service WASHINGTON — In the national debate over firearms, supporters of tighter gun laws frequently draw the comparison between guns and cars. "Like cars, guns are dangerous," said Handgun Control Inc. officials in a 1994 proposal for a new gun law titled "Brady II." "Cars are not designed to kill and yet are heavily regulated: You must be of a minimum age, take a training course, pass a proficiency test, get a license, obtain insurance, and the car must be registered. And automobile manufacturers are subject to stringent safety regulations. "Guns carry none of these restrictions. In the interest of saving lives, Brady II would require gun owners and manufacturers to adopt safety measures similar to those required of car owners and manufacturers." At a conference of the American Society of Criminology in Washington this month, a college professor raised his hand and told a panel of experts he had never heard a good answer to the question of why guns are not regulated like cars, with registration and licensing. The contention here is that the government regulates cars more heavily than guns and that firearms, given their lethality, should be raised to at least the same level of restrictions. It's a point that is inaccurate and one that gun control supporters may find thrown right back at them. National Rifle Association members and other gun enthusiasts likely would be eager to embrace a plan that puts pistols and shotguns on the same regulatory plane as minivans and sport utility vehicles. Consider some of the effects: A customer with a felony conviction unrelated to firearms could still get a gun license, just as, for example, a conviction for bank robbery does not prohibit anyone from getting a driver's license. A 16-year-old could buy a gun in most states. Since car owners can drive any vehicle they want on their private property in any manner they wish (including while stone cold drunk with un-seat belted small children in the car), a gun owner could keep any type of firearm they wanted on their private property and handle it as recklessly as they like. A Virginia driver's license allows a driver to operate a car in any state. So a gun license would allow a firearms owner to take his Glock .9mm pistol on that trip to Florida. "Treating guns like cars would be massive gun decontrol," said Dave Kopel, an adjunct professor at New York University Law School who has written for NRA publications. "The day they start treating guns like cars, every Second Amendment supporter in this country is going to throw a party." The theory that what's good for cars is good for firearms falls apart when pushed beyond the sloganeering. Driving and owning a car is more loosely regulated and owning a gun is more strictly regulated than the comparison suggests. Handgun Control's Robin Terry said the "Brady II" proposal is not an argument for equal treatment among guns and cars but an effort to familiarize the public with the ideas of licensing and registration. Like so many disputes in the persistent national debate over guns, this one demonstrates that the simple approaches sound reasonable but turn out fairly complex. Mark Johnson covers the Justice Department and Supreme Court for Media General News Service. World & Nation + Utah + Sports + Business + Opinion + Front page - -- Charles C. Hardy | If my employer has an opinion on | these things I'm fairly certain 801.588.7200 (work) | I'm not the one he'd have express it. "Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." -- James Madison, The Federalist Papers #46 at 243- 244 - - ------------------------------ Date: Wed, 2 Dec 1998 17:29:39 -0700 From: chardy@ES.COM (Charles Hardy) Subject: WW in DN--War Between the States Wednesday, December 02, 1998 Civil War was about controls, not slavery By Walter Williams The problems that led to the Civil War are the same problems today — big, intrusive government. The reason we don't face the specter of another Civil War is because today's Americans don't have yesteryear's spirit of liberty and constitutional respect, and political statesmanship is in short supply. Actually, the war of 1861 was not a civil war. A civil war is a conflict between two or more factions trying to take over a government. In 1861, Confederate President Jefferson Davis was no more interested in taking over Washington than George Washington was interested in taking over England in 1776. Like Washington, Davis was seeking independence. Therefore, the war of 1861 should be called "The War Between the States" or the "War for Southern Independence." History books have misled today's Americans to believe the war was fought to free slaves. Statements from the time suggest otherwise. In President Lincoln's first inaugural address, he said, "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so." During the war, in an 1862 letter to New York Daily Tribune editor Horace Greeley, Lincoln said, "My paramount object in this struggle is to save the Union, and it is not either to save or destroy slavery." Lincoln's intentions, as well as that of many Northern politicians, were summarized by Stephen Douglas during the presidential debates. Douglas accused Lincoln of wanting to "impose on the nation a uniformity of local laws and institutions and a moral homogeneity dictated by the central government" that "place at defiance the intentions of the republic's founders." Douglas was right, and Lincoln's vision for our nation has now been accomplished beyond anything he could have possibly dreamed. A precursor for a War Between the States came in 1832, when South Carolina called a convention to nullify tariff acts of 1828 and 1832, referred to as the "Tariffs of Abominations." A compromise lowering the tariff was reached, averting secession and possibly war. The North favored protective tariffs for its manufacturing industry. The South, which exported agricultural products to and imported manufactured goods from Europe, favored free trade and was hurt by the tariffs. Plus, a Northern-dominated Congress enacted laws similar to Britain's Navigation Acts to protect Northern shipping interests. Shortly after Lincoln's election, Congress passed the highly protectionist Morrill tariffs. That's when the South seceded, setting up a new government. Its constitution was nearly identical to the U.S. Constitution except that it outlawed protectionist tariffs, business handouts and mandated a two-thirds majority vote for all spending measures. States should again challenge Washington's unconstitutional acts through nullification. But you tell me where we can find leaders with the love, courage and respect for our Constitution like Thomas Jefferson, James Madison and John C. Calhoun. Creators Syndicate Inc. World & Nation + Utah + Sports + Business + Opinion + Front page - -- Charles C. Hardy | If my employer has an opinion on | these things I'm fairly certain 801.588.7200 (work) | I'm not the one he'd have express it. "Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." -- James Madison, The Federalist Papers #46 at 243- 244 - - ------------------------------ Date: Wed, 02 Dec 98 23:31:00 -0700 From: scott.bergeson@ucs.org (SCOTT BERGESON) Subject: LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS 1/3 - ---------- Forwarded message ---------- Date: Mon, 30 Nov 1998 21:41:49 -0500 From: "Mark A. Smith" To: SNET , David Rydel , L & J http://www.constitution.org/leglrkba.txt LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS Copyright (c) 1994 Constitution Society. Permission is granted to copy with attribution for noncommercial purposes. There is considerable confusion about the legal theory underlying the "right to keep and bear arms". This is a brief outline for a clarification of the discussion of this issue. (1) The Second Amendment to the U.S. Constitution does not establish the right to keep and bear arms. None of the provisions of the Constitution establish any "natural" rights. They recognize such rights, but the repeal of such provisions would not end such rights. Such rights were considered by many of the Framers as obvious or "self-evident", but they were immersed in the prevailing republican thought of the day, as expressed in the writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, and others, which discussed "natural rights" in some detail. Others argued that at least some of the rights needed to be made explicit in the Bill of Rights to avoid having future generations with less understanding of republican theory weaken in their defense of those rights. That has turned out to have been a good idea. (2) The right to keep and bear arms is a natural right of individuals under the theory of democratic government. This was clearly the understanding and intent of the Framers of the U.S. Constitution and was a long-established principle of English common law at the time the Constitution was adopted, which is considered to be a part of constitutional law for purposes of interpreting the written Constitution. (3) What the Second Amendment also does is recognize the right, power, and duty of able-bodied persons (originally males, but now females also) to organize into militias and defend the state. It effectively recognizes that all citizens have military and police powers, and the "able-bodied" ones -- the militia -- also have military and police duties, whether exercised in an organized manner or individually in a crisis. "Able-bodied" is a term of art established by English common law at the time the Constitution was adopted, and is the only qualification besides citizenship on what constitutes the "militia". While not well defined in modern terms, it is somewhat broader than just able-"bodied": implicit is also "able-minded" and "virtuous". In other words, persons might be excluded who were physically able to bear arms but who were mentally or morally defective. Defense of the "state" includes self-defense and defense of one's family and friends who are, after all, part of the state, but by establishing the defense of the state as primary a basis is laid for requiring a citizen to risk or sacrifice his life in defense of the state and is thus a qualification on the implicit right of self-defense, which is considered to prevail in situations in which self-sacrifice is not called for. (4) The U.S. Constitution does not adequately define "arms". When it was adopted, "arms" included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common-law definition would be "light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare." That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. Somewhere in between we need to draw the line. The standard has to be that "arms" includes weapons which would enable citizens to effectively resist government tyranny, but the precise line will be drawn politically rather than constitutionally. The rule should be that "arms" includes all light infantry weapons that do not cause mass destruction. If we follow the rule that personal rights should be interpreted broadly and governmental powers narrowly, which was the intention of the Framers, instead of the reverse, then "arms" must be interpreted broadly. (5) The right to keep and bear arms does indeed extend to the states. As do the other rights recognized by other Amendments, and as reinforced by the Fourteenth Amendment. It is not just a restriction on the powers of the central government. On the other hand, the citizens of a state can adopt a constitution that might restrict the exercise of such rights by delegating the power to do so to the state government. However, if the restriction of natural rights is unduly burdensome on those rights, then such a provision would be incompatible with the U.S. Constitution, its guarantee of the rights, and its guarantee that all states have a "republican" form of government - which such restrictions would compromise. (6) The legal basis for a government not infringing on the right to keep and bear arms is not constitutional provisions like the Second Amendment, but that the power to do so is not one of the enumerated powers delegated to the government, whether Union or State. That delegation must be explicit as pertains to arms. They can't be regulated on the basis of general powers to tax or to regulate commerce. Arms have a special status under constitutional law. Some State constitutions may delegate such powers to the State government. The U.S. Constitution does not delegate such powers to the Union government. No powers are delegated to government by the preamble to a constitution, which is only a statement of purpose, only by provisions in the body of the document and its amendments. (7) The legal basis on which the states can regulate arms is in those situations in which they conflict with property rights. It is a fundamental principal in law that the owners or managers of real property have the power to regulate who may enter their premises, and to set conditions upon their entry. That includes public property. Citizens have a right to keep and bear arms -- on their own property or property they control -- but not on someone else's property without his permission. [ Continued In Next Message... ] - - ------------------------------ Date: Wed, 02 Dec 98 23:31:00 -0700 From: scott.bergeson@ucs.org (SCOTT BERGESON) Subject: LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS 2/3 [ ...Continued From Previous Message ] (8) In other words, citizens have a right to keep and bear arms in those places and situations where they have a right to be, unless such rights are disabled by due process of law. Fundamental natural rights can never be lost, as contractual rights can be, only the exercise of those rights restricted or "disabled", to use the legal term. The distinction is very important. Natural rights are those which the individual brings with him when he enters into the social contract, and reclaims if the social contract is broken. The right to keep and bear arms is such a natural right, as is the right of free speech, religious belief, and privacy. The alternative is a contractual right created by a contract, such as the social contract. The right to vote or to be judged by a jury of one's peers are examples of rights created by the social contract, albeit important ones that are also constitutionally protected. Because they are constitutionally protected, it is only proper to speak of them as disabled, rather than lost, so long as the subject remains a citizen or natural person, depending on whether it is a right of citizenship or personhood. (9) It is unconstitutional to "disable" any rights by statute except one set: the rights of majority. The disabilities of minority do not need to be established by a court trial or hearing. However, they can be removed sooner than they would be removed by constitution or statute, by reaching a certain age. This means it is unconstitutional to disable the right to keep and bear arms to a class of persons by statute, including those, such as felons, who have been the subject of due process on another issue, except through a proceeding in which the court is explicitly petitioned to disable them, the subject has an opportunity to argue to the contrary, the petitioner has the burden of proof that the subject if armed would be a threat to himself or others, and the court grants that petition. Merely being convicted of a crime, or declared mentally incompetent, is not sufficient if the language of the judgment does not also explicitly disable the right to keep and bear arms, or set restrictions on such right. (10) "General police powers" is not a constitutional basis for states or localities to regulate arms. "General police powers" are the powers to use the means necessary and sufficient to stop someone who threatens to commit a major crime, or to arrest someone who has done so. All citizens have such power. They differ from regular, professional police only in that the regular police also have "special police powers" in matters such as minor offenses, and in that they outrank civilians. Since citizens have general police powers, they also have the right to such means as they require to exercise such powers in situations in which they may be called upon to do so. That includes arms. (11) To be constitutional, state laws restricting the bearing of arms must distinguish between public property, private commercial property which serves the public and which therefore confers certain rights to the public, and other private property with no public access rights. It is reasonable and constitutional to prohibit persons from bearing arms onto purely private property without notifying the owner or manager and obtaining his or her permission, except over public easements, such as sidewalks or the walkway from the street to the front door. On the other hand, it would be an undue burden on the right to bear arms to forbid persons from traveling between places where they have a right to be, and to bear arms while they do so, along public pathways or private easements, and using their own or a public means of transportation. It may not, however, be an undue burden to prohibit the bearing of arms onto certain public property where persons do not have unrestricted access, such as office buildings and auditoriums, provided that authorities guarantee the safety of persons who enter unarmed. Owners of commercial property serving the public which confers some rights of access to the public may prohibit the bearing of arms by posting or giving a notice to that effect, but lacking such notice, bearing arms onto the premises would be permitted. The rule must be that laws must not burden the right to bear arms except to the extent that they would impose a greater burden on the right of property owners to exclude persons bearing arms. (12) The law must presume that places of business that cater to arms, such as gun shops and shooting ranges, and events such as gun shows, offer presumptive permission to bear arms and that therefore it is not illegal to bear them there or to travel to and from them. (13) A carry permit system essentially is a removal of restrictions against bearing arms on public and private property unless there is an express prohibition against doing so, either in the form of a posted sign or a directive from the owner or his agent. The rationale for issuing such permits is to equip persons of good character to more effectively function as militiamen or police in situations in which regular police are not available or insufficient. That also includes self-protection, but the key factor is the duty to perform police duties as necessary. There also needs to be explicit statutory protection of the state or other permit issuing authority against criminal or civil liability for any acts done by the permit holder. One kind of carry permit is that which is one of the "special police powers" of regular law-enforcement officers, which allows them to carry anywhere, even against the express wishes of a property owner. (14) With the high levels of crime we now endure, the only effective way to extend police protection to a level that might deter crime is to recruit a substantial proportion of the public to go armed, by issuing them carry permits, offering them police training, and organizing them into a network of militia units closely coordinated with regular law enforcement agencies. It is likely that as many as 25% of the adult public could serve in this way on a regular basis, and another 25% on an occasional basis, and that if they did, we might expect it to have a significant positive impact on crime. Some such citizens might even be granted higher police rank, and perform regular police duties on a part-time basis. Such involvement of the public in law enforcement would also have other benefits: breaking down the social and psychological barriers that now separate the regular police from civilians, and deterring some of the abuses of authority that police have sometimes fallen into. [ Continued In Next Message... ] - - ------------------------------ Date: Wed, 02 Dec 98 23:31:00 -0700 From: scott.bergeson@ucs.org (SCOTT BERGESON) Subject: LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS 2/3 [ ...Continued From Previous Message ] (15) That the militia should be "well-regulated" is not a basis for restricting the keeping or bearing of arms. The term originally meant "self-regulated" and militias could be independent of state or national authority if not called up by such authority. Militia members may be required to carry certain standard arms during formations, but they cannot be forbidden from carrying additional arms of their own unless doing so would impair normal militia operations. State-appointed officers may direct when, where and in what manner members of the militia are to train and perform their duties, but may not forbid them to meet on their own. (16) The Union government has the power, under the U.S. Constitution, to regulate imports and interstate commerce in arms, but the Framers would not agree with how the "interstate commerce" clause (Art. 1, Sec. 8) of the Constitution has been broadly interpreted to include regulation of manufacture, possession, and local sales and use of items. A strict constitutional interpretation requires that the Union government has authority only over transactions that cross state lines, and not over actions or transactions that occur within state borders, even if they involve items that may someday cross state borders or may have once done so. If we want the Union government to have such authority, and a good case can be made for that, then the U.S. Constitution needs to be amended to delegate that authority to it. (17) The Union government also has excise taxing power, but since arms have special status under the Constitution, no tax may be levied that imposes an undue burden on the right to keep and bear arms. Rights are more fundamental than taxing powers, particularly since the right to keep and bear arms is recognized in an amendment which supersedes any prior provisions that conflict with it, which includes all taxing powers except the income tax (which does not provide a basis for taxing arms). Arms may be taxed as general merchandise is, such as with a sales tax, but any tax law which specifies arms for special taxes, other than reasonable use fees for public services related to them, must be considered unconstitutional. That would include taxes on ammunition and the ingredients to make it. The analogy is to taxes on newsprint, which may be taxed like other merchandise, but not in a way that would impose an undue burden on the right of a free press. (18) This means that no government has the power, unless that power is specifically granted to it under its constitution, to prohibit any person from manufacturing or possessing any gun or ammunition for it on his own premises or where he has a right to be, or against using it in a safe and responsible manner, or against selling or giving it to another person within the borders of a state. (19) Since the common law prevailing at the time the Constitution was adopted defined "militia" to consist of "able-bodied" citizens, including persons younger than the usual age of majority, any law restricting the possession, sale or gift of guns or ammunition to persons under the age of majority or any other particular age, or to minors (since persons under the age of majority may have their disabilities of minority removed by a court), is also unconstitutional, unless the constitution explicitly includes a disability of the right to keep and bear arms among the disabilities of minority. The proper test for being "able-bodied" must involve meeting certain standards that are independent of age, such as skill, judgement, and level of maturity. It is possible for persons to be "able-bodied" at quite a young age, and the law must recognize that competence where it exists. All citizens above the age of majority would have to be presumed able-bodied unless they or the state petitioned a court to rule otherwise and it granted the petition. However, it would be constitutional to require a reasonable test of competence to citizens below the age of majority, and to issue credentials to those qualifying which they would be required to show when answering calls of the militia or, if the right to keep and bear arms were included among the rights disabled by minority, when bearing arms. Early removal of the disabilities of minority would then also remove the disabilities of the right to keep and bear arms. (20) The "full faith and credit" clause of the U.S. Constitution requires that persons issued a carry permit by one state must have that permit recognized in other states. This suggests a uniform standard for qualifying persons for issuance. REFERENCE: Stephen P. Halbrook, That Every Man be Armed, available from The Independent Institute, 134 98th Av, Oakland, CA 94603, 510/568-6047. Constitution Society, 6900 San Pedro #147-230, San Antonio, TX 78216, 210/224-2868 - - ------------------------------ End of utah-firearms-digest V2 #114 ***********************************