Bright Days Ahead for the Second Amendment?

Bright Days Ahead for the Second Amendment?
by Sheldon Richman, September 2000

THE SICKENING spectacle of hoodlum gangs molesting women in New York City’s Central Park in broad daylight while the police stood by has elicited volumes of criticism. But two key facts have been left out of the commentary:

First, the police have no legal duty to come to any particular person’s aid.

Second, molesters in New York City can be virtually certain that their victims are unarmed.

It is not widely appreciated that, as Richard Stevens, author of Dial 911 and Die, writes, “The government and the police in most localities owe no legal duty to protect individuals from criminal attack.” Not only can the police not protect everyone, the courts have ruled that they have no obligation to protect any specific person. In most states, a lawsuit by a citizen against the police for breach of duty would be dismissed because the courts or legislatures have immunized the police from liability.

While most citizens assume they will be protected by their local police, in fact they have no guarantee — as those unfortunate women, including a 14-year-old girl — learned to their horror. This doesn’t mean the police department won’t internally discipline the idle policemen. Politics assures that something will be done. Police departments are inherently political organizations; indeed, the police may have held back because it was the day of the Puerto Rican parade. But the women who were assaulted will probably have no standing in court if they seek redress. This stands in contrast to the citizen who employs a private security firm.

Thus people have been lulled into falsely believing that the police are looking out for them and that their right of self-defense has been safely delegated to government. Nonsense! The right and responsibility of self-defense are not — and cannot be — delegated, no matter what assurances the mayor, governor, and president give.

Which brings us to the subject of firearms. New York is one of some 20 states that prohibit citizens from carrying handguns for self-protection. More than 30 states have enacted some form of law that permits people to carry concealed handguns. (Vermont is apparently the only state that honors the Second Amendment by not requiring a permit for concealed carry.) The record of states in which concealed carry is legal has been excellent. According to John Lott of Yale Law School, violent crime falls when would-be criminals realize that their victims may be armed. Despite the frantic warnings of the anti-self-defense lobby, concealed carry does not lead to fender-bender shootouts. The overwhelming majority of people who carry concealed weapons are law-abiding Good Samaritans.

But that day in Central Park, the hoodlums who assaulted those women could be sure that their victims and bystanders were unarmed. New York is not a concealed-carry state. People have wondered why the bystanders did not defend the women. The prospect of being beaten by a gang of toughs might indeed deter a lone unarmed citizen from aiding a fellow citizen in distress. But what about a few armed and trained citizens? Better yet, perhaps the assaults would not have occurred had the thugs suspected that people in the park carried concealed weapons.

The standard reaction to concealed carry is that this would take us back to the Old West. Well, yes. But that would be a good thing, because serious research on the Old West shows unequivocally that it was safer than our big cities are today. A primary reason has to be that most people carried handguns and knew how to use them.

The purpose of the Second Amendment

The Founders of this country included the Second Amendment in the Bill of Rights, not because they were hunters or sport shooters, but because they understood that it is impossible to surrender one’s right of self-defense against crime and tyranny. Back then, to be free meant to take full responsibility for one’s life. That is just as true today, which is why gun control is nothing less than self-defense prohibition.

But the times have not been good for advocates of self-defense. While public opinion is close on the issue of gun control, the forces that control public discussion are almost completely in the hands of the anti-gun lobby. Imagine that all you heard about a new medicine was that it was involved in the deaths of several people a year. Your inclination would be to avoid it. But what if that same medicine also saved several thousand people a year, but the news media thought only the deaths were newsworthy? You’d be misled, right?

That’s what happens with guns. Virtually every gun death makes the national news. The most exotic incidents — teen shootings at schools and zoos — are covered for days on end. But when was the last time you saw television news coverage of a would-be victim of crime using a gun to defend himself? You’d think this never happens. Yet it happens more often than the shooting of innocents by teens and adult criminals. By some estimates, it happens two and a half million times a year, mostly without a shot being fired. That’s about 6,800 times a day! Maybe it’s not deemed newsworthy because it happens so often. But I doubt that’s what runs through the minds of news directors. It is hard not to conclude that they have decided not to “glorify” gun ownership. (To read about law-abiding people defending themselves with guns, you have to scour the Internet or read the gun magazines.)

The common use of firearms in defense of innocent life demolishes the anti-gun lobby’s most basic premises. The lobby is fond of saying that guns are designed to kill and thus should be subject to myriad regulations — registration, licensing, waiting periods, safety devices — if not prohibition. But the matter of dangerousness is not as simple as the Sarah Bradys and Rosie O’Donnells would have us believe. True, guns are designed to propel bullets at speeds high enough to kill. But that design means guns can be put to moral or immoral purposes depending on whom they are pointed at. Their very lethality makes them as much tools of life as tools of death. When a woman uses a handgun to repel a rapist; when a father uses a gun to stop an intruder from harming his family; when an assistant principal uses a gun to stop a student from shooting other students — those guns are tools of life. The people who would deprive those folks of guns are the true agents of death. Devices to make guns “safe” would actually endanger innocent life.

Positive signes in the courts

It is quite possible that we will soon turn the corner in the gun-control debate. In June, the Fifth U.S. Circuit Court of Appeals in New Orleans heard a case that may lead the U.S. Supreme Court to rule that the Second Amendment protects an individual’s right to keep and bear arms. The appeal arises from a 1999 case, U.S. v. Timothy Joe Emerson, in which U.S. District Judge Sam Cummings of Texas, who reads the Amendment that way, struck down a federal law that forbids gun possession to people under restraining orders. During Emerson’s divorce proceedings, Mrs. Emerson was granted a routine restraining order, which has the effect of preventing the emptying of bank accounts and such activity. Although Mrs. Emerson told the divorce court that her ex-husband had threatened her boyfriend, the court took no evidence and made no such finding.

Unknown to Emerson, the restraining order activated a federal law requiring him to give up any firearms. When he was later found in possession of a handgun (having allegedly brandished it before his ex-wife), he was charged with violating the federal law. (He wasn’t charged with a state firearms violation.)

In asking for a dismissal of the charge, Emerson argued that it is unconstitutional for him to be deprived of a constitutional right without a court finding that he had specifically threatened someone. President Clinton’s Justice Department replied that the Second Amendment does not protect an individual right, only the states’ right to maintain the National Guard. Judge Cummings rejected the government’s argument and struck down the law.

Reports from the appeals court inspire optimism. Two members of the three-judge panel referred to their own firearms. According to a report by Neal Knox, one of the judges said that he and the chief judge “between us have enough guns to start a revolution in most South American countries.”

The government case relies on a 1939 U.S. Supreme Court case, U.S. v. Miller, in which a man’s conviction for possession of a sawed-off shotgun was upheld because that particular weapon was deemed unsuitable for military duty. The Emerson appellate judges reportedly told the government’s lawyer that he misread Miller. He surely did. The case did not hinge on whether Miller was a member of the National Guard, only on whether the shotgun was a military weapon. That would have no bearing in the Emerson case: his gun is a Beretta Model 92 9mm pistol, standard issue in the U.S. military.

Mr. Richman is senior fellow at The Future of Freedom Foundation and editor of Ideas on Liberty (published by The Foundation for Economic Education).

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