The Right to Keep and Bear Arms

A well regulated Militia,
being necessary to the security of a free State,
the right of the people to keep and bear Arms,
shall not be infringed.

The right to keep and bear arms is derived from and is inseparably linked to the right of self-defense. Thus, by nature it is an individually possessed right, as are all rights protected in our Constitution.

The Founding Fathers, the Framers of the Constitution and Bill of Rights, and those whom the Supreme Court (U.S. v. Miller, 1939) referred to as “approved commentators” of their day could not have been more clear about the nature of the right and the purpose of the Amendment.

Patrick Henry said, “The great object is that every man be armed.” Richard Henry Lee wrote, “To preserve liberty it is essential that the whole body of people always possess arms.” Thomas Paine noted, “(A)rms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them.” Thomas Jefferson said, “no free man shall be debarred the use of arms.”

In introducing the Bill of Rights in the House of Representatives, James Madison noted that the amendments “relate first to private rights.” Sen. William Grayson observed that they “altogether respected personal liberty.” Prominent Federalist Tench Coxe wrote, “(T)he people are confirmed by the next article (of amendment) in their right to keep and bear their private arms.”

Constitutional scholars have noted that there is no historical basis for the claim that the Amendment protects a so-called “collective right” of the states. Stephen P. Halbrook writes, “If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.” (That Every Man Be Armed, Univ. of N.M. Press, 1984.)

Historian Joyce Lee Malcolm, testifying before Congress in 1995 said, “It is very hard, sir, to find a historian who now believes it is only a ‘collective right’ . . . . (T)here is a general consensus that in fact it is an individual right.” Prominent liberal constitutional scholars Laurence H. Tribe and Akhil Reed Amar write, “(T)he Second Amendment’s reference to the people’s ‘right’ to be armed cannot be trumped by the Amendment’s preamble. Besides, the 14th Amendment, which makes parts of the Bill of Rights applicable to the states, reflected a broad agreement that bearing arms was a ‘privilege’ of each citizen.” (“Well-Regulated Militias, and More,” New York Times, 10/28/99.)

The Supreme Court recognized that the right to arms is an individual right in U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939) and U.S. v. Verdugo-Urquidez (1990). In U.S. v. Cruikshank, the Court also recognized that the right preexisted the Constitution. In U.S. v. Emerson ( N. Dist. Texas, 1999), Judge Sam Cummings ruled that “A textual analysis of the Second Amendment supports an individual right to bear arms.” Other federal court decisions have been divided on whether the right is individual or “collective.”

The National Guard, established in 1903, is not the Militia referred to in the Second Amendment. For more than 400 years, the term “well regulated militia” has meant the people, with privately owned weapons, led by officers chosen by themselves. Tench Coxe said that the militia “are in fact the effective part of the people at large.” Richard Henry Lee said that the militia “are in fact the people themselves . . . and include all men capable of bearing arms.” George Mason said that the militia consist “of the whole people.”

The Guard is subject to absolute federal control (Perpich v. Dept. of Defense, 1990) and thus is not the “well regulated militia” named in the Second Amendment. “The Militia of the United States” is defined under federal law to include all able-bodied males of age and some other males and females (10 U.S.C., ?311; 32 U.S.C., ?313), with the Guard established as only its “organized” element.

RIGHT TO CARRY
Thirty-one states now have Right to Carry (RTC) laws providing for law-abiding citizens to carry firearms for protection against criminals. Twenty-two states have adopted RTC laws in the last dozen years. Half of Americans, including 60% of handgun owners, live in RTC states.

Professor John R. Lott, Jr. and David B. Mustard, in their research at the University of Chicago, conclude, “allowing citizens to carry concealed weapons deters violent crimes and it appears to produce no increase in accidental deaths. If those states which did not have Right To Carry concealed gun provisions had adopted them in 1992, approximately 1,570 murders; 4,177 rapes; and over 60,000 aggravated assaults would have been avoided yearly. . . . (T)he estimated annual gain from allowing concealed handguns is at least $6.214 billion . . . . (W)hen state concealed handgun laws went into effect in a county, murders fell by 8.5%, and rapes and aggravated assaults fell by 5 and 7%.” (“Crime, Deterrence, and Right To Carry Concealed Handguns,” 1996. See also More Guns, Less Crime, Univ. of Chicago Press, 1998.)

RTC states have lower violent crime rates on average: 26% lower total violent crime, 20% lower homicide, 2% lower rape, 39% lower robbery and 22% lower aggravated assault. Eight of the 10 states with the lowest violent crime rates are RTC states. People who carry legally are by far more law-abiding than the rest of the public. In Florida, for example, only a fraction of 1% of carry licenses have been revoked because of gun-related crimes committed by license holders. (Fla. Dept. of State)

Survey research during the early 1990s by criminologist Gary Kleck showed at least 2.5 million protective uses of firearms each year in the U.S. “(T)he best available evidence indicates that guns were used about three to five times as often for defensive purposes as for criminal purposes” (Kleck, Targeting Guns, 1997).

Most protective uses do not involve discharge of a firearm. In only about 0.1% of protective gun uses are criminals killed, and in only 1% are criminals wounded. A Dept. of Justice survey found that 40% of felons chose not to commit at least some crimes for fear their victims were armed, and 34% admitted being scared off or shot at by armed victims. (James D. Wright, Peter H. Rossi, Armed and Considered Dangerous, 1986)

CURRENT ISSUES
Mandatory storage laws that would require gun owners to purchase and install gun locks on all firearms prevent a firearm from being used for self-defense and impose a single requirement on each gun owner regardless of his or her personal circumstances.

Registration and licensing are precursors to confiscation, as shown by recent experiences in England, Australia, Mexico and California. In the 1970s, the first chairman of Handgun Control described registration as the second step in a three-part plan to confiscate all privately owned handguns in America. Criminals will not register guns or license themselves, thus such measures impact upon only good citizens.

Junk lawsuits against firearm manufacturers are an attempt to bankrupt a lawful industry by seeking to hold its members responsible for the acts of criminals. Because these lawsuits run counter to long-standing principles of tort law, the legislatures of 23 states have prohibited them.

“One per month” limits on handgun purchases are arbitrary, could be increased to one per year or, as recently imposed in South Africa, one per person . . . period. The first federal handgun limit legislation, sponsored by Sen. Ted Kennedy in the 1970s, called for a limit of two handguns per year. Such limits treat a constitutionally protected right as if it were a mere privilege to be rationed.

“Gun Show” legislation pushed by anti-gun members of Congress contained provisions designed to eliminate, not simply regulate, gun shows. In 1999, the anti-gunners showed their true goals by voting against another bill that would have required Instant Checks on all sales at shows without eliminating shows.

Raising the age for handgun ownership from 18 to 21 would infringe the right of young adults to defend themselves and their families. Persons of that age can drive a car, serve in the military, vote, buy a home and raise a family. Why shouldn’t they be trusted to be responsible as gun owners?

Waiting period have never reduced crime. Historically, violent crime has been worse in states with waiting periods. States that had the Brady Act’s waiting period imposed upon them in 1994 had worse violent crime trends thereafter, compared to other states. (FBI)

“Gun control” advocates claim that a waiting period is necessary as a “cooling off period” for “crimes of passion.” However, Congress rejected the “cooling off” theory when it passed the Instant Check provisions of the Brady Act in 1993, following Dept. of Justice testimony that there were no statistics suggesting that large percentages of firearms were being used in crimes within a few days of their purchase. Later, the BATF reported that the average gun taken from a violent crime scene is more than six years old.

“Gun control” advocates claim that a thorough records check cannot be accomplished without a delay. But most Instant Checks require only a few minutes, and they are the most comprehensive checks ever run on firearm purchasers, superior to any conducted under waiting periods.

The federal “assault weapon” law affects firearms never widely used in crime, a fact noted by a study conducted for Congress. (The Urban Institute, “Impact Evaluation of the Public Safety and Recreational Firearms Use Protection Act of 1994,” 3/13/97.) The law unfairly restricts semi-automatic rifles which have for decades been widely used in organized target shooting events and with which, for national defense purposes, citizens should be able to maintain familiarity and proficiency. The law expires in Sept. 2004.

ASK THE PEOPLE
85% of Americans believe people have the right to use firearms to defend themselves in their homes, 64% favor allowing law-abiding citizens to carry firearms for protection outside their homes, and 72% prefer stiffer sentences for criminals who use guns in crime, rather than more gun laws. (National survey of registered voters, Lawrence Research, 1998.)

FIREARM SAFETY
Because focus group research has shown that the public reacts unfavorably to the term “gun control,” anti-gun politicians and activist groups have begun calling their legislative proposals by the euphemistic term “gun safety.” True gun safety, however, depends on education and personal responsibility, not government regulation.

NRA’s 38,000 Certified Instructors and Coaches reach 700,000 Americans each year. The NRA’s award-winning Eddie Eagle? GunSafe Program has been used by more than 10,000 schools and law enforcement agencies to reach 13 million children since 1988. Accidental deaths with firearms have been decreasing for decades and are now at an all-time annual low among the U.S. population on the whole and among children in particular. Since 1930, the annual number of such accidents has decreased 73%, while the U.S. population has more than doubled and the number of privately owned guns has quintupled. They decreased 42% during the decade 1989-1998, and continued falling to record annual lows almost every year thereafter. Between 1998-1999 they declined another estimated 13%. Among children, fatal firearm accidents have decreased 78% since 1975. (National Center for Health Statistics and National Safety Council)

The per capita rate of accidental deaths with firearms is also at an all-time low. It has decreased 91% since the all-time high in 1903, 50% during the decade 1989-1998. Firearm accidents account for 0.9% of accidental deaths and 0.04% of all deaths in the U.S. Among children, firearm accidents account for 2% of accidental deaths and 0.4% of all deaths. Most accidental deaths involve motor vehicles or are due to drowning, falls, fires, poisoning, medical mistakes, choking on ingested objects, and environmental factors

“GUN CONTROL” FAILURES
The federal Gun Control Act was imposed in 1968, yet violent crime increased steadily until the early 1990s. Washington, D.C., banned handguns in 1976, and by 1991 its homicide rate had tripled, while the U.S. rate rose only 12%. States that delay firearm sales with waiting periods, licensing, and purchase permits have historically had higher crime rates. Since California imposed a 15-day waiting period on firearm sales in 1975 (reduced to 10 days in 1997), its violent crime rate has been 50% higher each year, on average, compared to the rest of the country. States without Right to Carry laws have higher crime rates on average.

A Library of Congress study concluded, “it is difficult to find a correlation between the existence of strict firearms regulations and a lower incidence of gun-related crimes.” (Report for Congress: Firearms Regulations in Various Foreign Countries, LL98-97-2010, May 1998)

CRIME CONTROL, NOT “GUN CONTROL”
Violent crime has decreased for eight consecutive years. Most criminologists and sociologists attribute the decrease to increased imprisonment rates, mandatory sentencing requirements, the hiring of additional police officers, “community policing,” improved policing methods and equipment, the aging of gang populations, the decline in the crack cocaine trade, the improved economy, and other factors unrelated to restrictions on firearms. Notably, less than one-fourth of violent crimes are committed with firearms. (FBI)

“Gun control” advocates instead credit the federal Brady Act and “assault weapon” laws. However, both laws were imposed in 1994, two years after crime began declining, and independent studies have found no evidence that either has affected crime levels. (The Urban Institute, cited above, and Ludwig and Cook, “Homicide and Suicide Rates Associated with Implementation of the Brady Handgun Violence Prevention Act,” Journal of the American Medical Association, 8/2/00) Violent crimes committed with weapons other than firearms have decreased at roughly the same rate as those committed with firearms. (FBI)

“Gun control” advocates also allege that federal restrictions on firearms laws have reduced crime by reducing gun sales – an extension of the anti-gun activists’ slogan, “more guns means more crime.” To the contrary, privately owned firearms increased in the U.S. by 40-45 million during the 1990s. Furthermore, only about 2.5% of retail gun purchase attempts are rejected under the Brady Act (including persons wanting guns for non-criminal purposes), only a small percentage of those who illegally attempt to buy guns are prosecuted, and the Act does not prevent those who are not prosecuted from acquiring guns by other means (or other weapons by any means).

A study for the Department of Justice concluded, “Advocates of stricter weapons regulations sometimes assert that the United States is virtually the only advanced civilized nation in the world that exercises no controls over the civilian ownership of possession or use of firearms. In fact there are about 20,000 firearms laws of one sort or another already on the books.” (Wright, Rossi, Under the Gun, 1983.)

Rather than imposing additional laws that restrict the rights of the law-abiding, existing laws should be strictly enforced against violent armed criminals. “Project Exile,” launched in 1997 by U.S. Attorneys working with state and local law enforcement in Richmond, Va., cracks down on illegal possession of firearms by felons. In a year, the city’s homicides were cut 41% from their 1994 high. Crimes committed with firearms decreased 65%. In the three years since the inception of the Richmond program, several hundred felons have been returned to prison with sentences averaging 56 months. Six states–Virginia, Texas, Florida, South Carolina, Louisiana and Colorado–have instituted similar programs, as have several major cities, including New Orleans, Birmingham, Philadelphia, Oakland, Rochester and Buffalo.

GENERAL INFORMATION
* Privately owned firearms in the U.S.: Over 200 million, including 65-70 million handguns

* Gun owners in the U.S.: 60-65 million; 30-35 million own handguns

* American households that have firearms: Approx. 45%

* Hunters nationwide: 14 million (16 yrs. of age and older)

* NRA Members: 4.2 million

* NRA State Associations and Local Clubs: 10,000

* NRA Target Shooting Tournaments annually: 10,000

* NRA Certified Instructors: 38,000