Amicus Curiae Brief — Florida v. J. L.

*

«

copy

7

get 3 8

BEST AVAILAB

i

QUESTIONS PRESENTED

kK Whether the Florida Supreme Court ruled correctly in

declining to create a “firearms exception” to the Fourth

Amendment to the United States Constitution.

> Whether the judicial creation of a “firearms exception”

to the Fourth Amendment to the United States Constitution

would result in the increased violation of the civil rights of

African-Americans, the poor and other minorities.

Questions Presented

Table of Contents

Table of Cited Authorities

Statement of Interest and Identity of Amicus Curiae

Statement of the Case

Opinion Below

Summary of the Argument

li

TABLE OF CONTENTS

GUN CONTROL MEASURES HAVE BEEN

AND ARE USED TO DISARM AND OPPRESS

BLACKS AND OTHER MINORITIES ........

A. Gun Control in the Slave Codes ..........

B. Black Codes, Reconstruction and the

Fourteenth Amendment: A

Fundamental Individual Right to Keep

And Bear ASURB ...oceeesesss eee

C. Post-Recomeermetiom ....cccccustsvian

D. United States v. Cruikshank .............

E. Gun Control in the Twentieth Century .....

eeeeoe ea oeeoeeeseeseeoeeseests 8 22 ee | ee

eeeeoe oeeoeus8s1e@g#sees8s © 82 2.9 3 & a oe ee

eeee oeeoeeesesdsegeeoecees 0d 646 26 2 2 2

ili

Il. CURRENT GUN CONTROL EFFORTS: A

CC 21

A.

Conclusion

By Prohibiting the Possession of Firearms,

the State Discriminates Against Minority

CC 23

The Enforcement of Gun Prohibitions Spur

Increased Civil Liberties Violations,

Especially in Regard to Blacks and Other

PERCU RE SEK 6640 606666 dcccccece 25

iv

TABLE OF CITED AUTHORITIES

CASES Page(s)

Andrews v. State, 50 Tenn. (3 Heisk.) 165 (1871) ...... 16

Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982)........ 24

Cooper v. Mayor of Savannah, 4 Ga. 68 (1848) ......... 8

Dabbs v. State, 39 Ark. 353 (1882) .................. 16

DeShaney v. Winnebago County Dep't of Social Serv., 109

SED DIED dcvudachssdvestdoneecsasduces 24

Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856)... .. 9

Ex Parte Lavinder, 88 W.Va. 713, 108 S.E. 428 (1921) ... 6

JL. vy. State of Florida, 727 So.2d 204, 205 (Fla. 1998) . 4-5

No. CA3 3: 90CV00576 (E.D. Va. ‘Dec. 3, 1990) . |

R : Lv. Chi Homsing Author!

et_al.. Case No. 88C10566 (N.D. Ill. Nov. 30,

PE dacavadsaxdinwiecioisaieketwaceus 29, 30

- Shuttlesworth v. City of Birmingham, 394 U.S. 147

sc tik re pe a de 22

South v. Maryland, 59 U.S. 396 (1855) ............... 24

State v. Burgoyne, 75 Tenn. 173 (1881) .............. 16

V

State v. J.L., 689 So. 2d 1116 (Fla. 3d DCA 1997) ..... 3,4

State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921) ..... 19

State v. Newsom, 27 N.C. 250 (1844) ................. 8

United States v. Cruikshank, 92 U.S. 542 (1875) .... 17, 18

United States v. Emerson, (No. 99-10331) (Sth Cir. 2000) . 2

Watson v. Stone, 148 Fla. 516, 4 So. 2d 700 (1941) ...... 6

CONSTITUTIONAL PROVISIONS

Ee os cn s ccapanbconecvvensetet 4

U.S. CONST. amend. IV ............... i, 2, 4, 7, 26, 30

BE a ryt eee oe 4, 30

Rs wGk iu sGad eh Wis ae ddeos een 3,4

STATUTES

2 Statutes at Large; Being a Collection of All the Laws of

Virginia, from the First Session of the Legislature, in

the Year 1619 (W.W. Henning ed. 1823) ........... 8

7 Statutes at Large of South Carolina (D.J. McCord ed.

DE cenit nedeaeyseenihaubwueneduhe ones 8

tS vtec vee cada cube weeemeeh aan’ 11

ty EID « « dnnes ddeticecdcecescueseet 17

vi :

FP ins ie EE UE a0 0 6c ek s5beSiukseveces 17

1866 Miss. Laws ch. 23, §1 (1865) .................. 10

es a tt CEE 0 6.6 cones wandeéustusne 3

Peaks EARN OS PU UOEEPEEOOED i ccacsevcccccdeccece 3

N.Y. PENAL LAW § 1897 (Consol. 1909) ............ 19

LEGISLATIVE MATERIALS

121 Cong. Rec. S. 189 (daily ed. Dec. 19, 1975)........ 25

Cong. Globe, 39th Cong., Ist Sess. (1865-66)....... 10, 12

Cong. Globe, 42nd Cong., Ist Sess. (1871) ............ 14

Federal _Fi Legislation: Heari Before the

H.R. Rep. No. 37, 41st Cong., 3rd Sess. (1871) ..... 13,14

Ww Ww S

Akhil Reed Amar, The Bill of Rights as a Constitution,

— gf BR te rere 12-13

Comment, Carrying Concealed Weapons, 15 Va. L. Reg.

RHEE ee ey 2 16

Vii

Robert J. Cottrol and a 3s Diamond, Sever

Jurisprudence?, 70 Chi. Kent L. Rev. 1307 (1995) ... 5

Robert J. Cottrol and Raymond T. Diamond, The Second

—_—— \ fro- —

Reconsideration, 80 Georgetown L.J. 309 (1991) . 5-6

Critique, On the Limitations of Empirical Evaluation of

the Exclusionary Rule, 69 NW. U.L. Rev. 740

ee ebua en

Stephen P. Halbrook, The Jurisprudence of the Second

and Fourteenth Amendments, 4 Geo. Mason U. L.

I 8,10

Stephen P. Halbrook, Personal Security, Personal

Lil | "the Constitutional Rig! E

Amendment, 5 Seton Hall Const. L.J. 341 (1995) ..

Kermit L. Hall, Political Power and Constitutional

Legit - The § :

Trials, 1871-1872, 33 Emory L.J. 921 (1984) .....

Don B. Kates, Jr., Handgun Prohibition and the Original

Meaning of the Second Amendment, 82 Mich. L.

oy

Don B. Kates, Jr., On Reducing Violence or Liberty,

1976 Civ. Liberties Rev. 44 ...................

14

Viii

Raymond G. Kessler, Gun Control and Political Power,

5 Law & Pol’y Q. 381 (1983) ............0000. 5, 6

David B. Kopel, Shn_Aesent_.seentanet ia ie

Nineteenth Century, 1998 B.Y.U.L. Rev. 1359 .... 15

Paula D. McClain, Firearms Ownership. Gun Control

Attitudes. and Neighborhood Environments, 5 Law

SL IES cc Kia ceducnseces cscs 24

Note, Some Observations on the Disposition of CCW

Cases in Detroit, 74 Mich. L. Rev. 614 (1976) .... 25

BOOKS

Akhil Reed Amar, The Bill of Rights (1998)... .. 11, 14, 15

FBI Uniform Crime Reports, Crime in the United States

Annual Reports (1989-1998) ..............40.. 25

Eric Foner, Reconstruction (1988) ................... 13

Stephen P. Halbrook, Freedmen. the Fourteenth

Amendment, and the Right to Bear Arms, 1866-

BRR iia iets he Rea 11

Hardy and Chotiner, The Potential for Civil Liberties

Violations in the Enforcement of Handgun

Prohibitions in Restricting Handguns: The Liberal

Skeptics Speak Out 209 (D. Kates ed. 1979). ..... 21

Toward the Negro, 1550-1812 (1968) ............ 8

Don B. Kates, Jr., Introduction in Restricting

Handguns: The Liberal Skeptics Speak Out (D.

RI REN ERS 22

Don B. Kates, Jr., Toward A History of Handgun

Prohibition in the United States in Restricting

Handguns: The Liberal Skeptics Speak Out 14

(D. Kates ed. 1979) ............... 16, 18, 19, 20

Lee B. Kennett and James LaVerne Anderson, The Gun

: ioe> The Orici F a National Dil

ES Shee eee eld debs be6 On eee ves 7, 18,19

Norville Morris and Gordon Hawkins, The Honest

Politician's Guide to Crime Control (1970) ...... 27

Robert Sherrill, The Saturday Night Special (1972) ..... 21

U.S. Dept. of Labor, Time of Change: 1983 Handbook

on Women Workers (1983) .................. 23

United States Census Bureau, U.S. Statistical Abstract

tel olts tice chee wa eed é000 66606 es 28

James D. Wright, Peter H. Rossi and Kathleen Daly,

Under the Gun: W Ori 1 Viol

RUSS eel CPL A eS 28

X

MISCELLANEOUS AUTHORITIES

Associated Press, Cleveland Reports No Assault Guns

Turned In, Gun Week, Aug. 10, 1990, at2 ...... 28

Barry Bruce-Briggs, The Great American Gun War,

The Public Interest, Fall 1976 at37 ............ 21

Detroit Free Press, Jan. 26, 1977, at4. ............... 27

Caroline Wolf Harlow, U.S. Dept. of Justice, Female

Victims of Violent Crime (1991) .............. 24

Don B. Kates, Handgun Control: Prohibition Revisited,

Io oN wos ccb.cuew eee eee 24

Masters, Assault Gun Compliance Law, Asbury Park

Pe a EEE. wo dcahcnbidedanaees 28

Py We Be ORE So vacaSeecnsccaestanceed 27

Selwyn Raab, 2 Million Ill ieved Within

the City, N.Y. Times, Mar. 2, 1975, at 1 ..... 15,21

William Tonso, Gun Control: White Man's Law,

SEL, EUs BURGE sass vcccceccccess 15, 21

Jill Walker, Few Californians Register Assault Guns,

Washington Post, Nov. 29, 1990, at A27. ....... 28

Malcolm Richard Wilkey, Why Suppress Valid

Evidence?, Wall Street J., Oct. 7, 1977, at 14 .... 26

A "

STATEMENT OF INTEREST AND

IDENTITY OF AMICUS CURIAE'

The Congress of Racial Equality, Inc. (generally and

well-known as “CORE”) is a New York not-for-profit

corperation founded in 1942, with national headquarters in

Harlem, New York City. CORE is a nationwide civil rights

organization, with consultative status at the United Nations,

which is primarily interested in the welfare of the black

community, and the protection of the civil rights of all citizens.

CORE has programs to support senior citizens and curb

drug abuse, it maintains a Disability Rights Project, raises and

distributes food to the needy, counsels teenagers, organizes

volunteers to inspect housing for unsanitary ana hazardous

conditions, helps unwed and abandoned mothers accept

employment by finding day care centers for their children,

manages sports programs for young people, runs "job banks"

to find work for the unemployed, tutors students to improve

their reading skills, works with candidates for civil service

examinations, helps small entrepreneurs acquire business skills,

helps register new voters, sponsors minority dancers, singers,

painters and other artists, finds summer work for black

students, helps workers in cases of job discrimination,

maintains a list of volunteer attorneys, publishes magazines and

literature dealing with subjects of interest to its members and

supporters, and engages in litigations in support of its

objectives.

In particular, CORE has involved itself in the fight

against crime, the scourge of black neighborhoods, and in the

effort to shape a more effective and responsive system of

' The parties have consented to the submission of this brief. Their

letters of consent have been filed with the Clerk of the Court. No counsel

for a party authored this brief in whole or in part, and no person or entity,

other than the amicus curiae, its members, or its counsel, made a monetary

contribution to the preparation or submission of this brief.

2

criminal justice, including prison reform. Blacks are

disproportionately the perpetrators and the victims of crime in

our country. Members of the family of CORE’s National

Chairman, Roy Innis, have been victimized and murdered by

criminals. CORE seeks on the one hand to preserve and rescue

young blacks from the Slough of Despond to which centuries

of social and economic discrimination have consigned them,

and which leads them, unconvinced of their own value as

human beings, to resort to crime. At the same time CORE

seeks to ensure that suspects, whatever their background, once

arrested are promptly and fairly tried, and if found guilty, are

sentenced and properly punished.

CORE also believes that those who may be victimized

by violent criminals have a right to self-defense secured by

constitutional and common law, and that the right to self-

defense includes the right to the possession by responsible

adults of defensive weapons, including firearms, subject to law.

CORE recognizes that the decision to own a gun for self-

defense necessarily involves some degree of willingness to use

it against another person. Such a decision is not light or easy,

and involves important ethical, moral and religious issues.

Therefore, CORE does not venture to advise anyone to own a

gun for self-defense. Nevertheless, CORE is convinced that

those who conclude they should arm themselves against the

crime run rampant in many poor minority neighborhoods which

are rarely if ever afforded adequate police protections, should

have the right to do so, subject to applicable law.

CORE has previously filed numerous amicus curiae

briefs in both state and federal courts. The most recent

example is United States v. Emerson, U.S. Court of Appeals for

the 5th Circuit, Appeal No. 99-10331.

CORE opposes petitioner's request to create a firearms

exception to the Fourth Amendment.

3

STATEMENT OF THE CASE

Florida law does not generally prohibit the possession

of firearms. In fact, the Declaration of Rights in the Florida

Constitution protects the right of Florida citizens io possess

arms for self defense: “The right of the people to keep and bear

arms in defense of themselves and of the lawful authority of the

state shall not be infringed, except that the manner of bearing

arms may be regulated by law.” FLA. CONST. art. I, § 8(a).

The Florida Constitution and Florida statutes allow citizens to

carry a concealed firearm with a proper license. FLA. CONST.

art. I, § 8(b) and FLA. STAT. § 790.06 (1997). The State of

Florida, in a declaration of policy incorporated in its “Weapons

and Firearms” statute, recognizes the constitutionally protected

lawful ownership and use of firearms for sporting purposes,

collecting, hunting and self defense.

It is the intent of the Legislature that adult citizens of

the state retain their constitutional right to keep and

bear firearms for hunting and sporting activities and for

defense of self, family, home, and business and as

collectibles. Nothing in this act shall be construed to

reduce or limit any existing right to purchase and own

firearms, or to provide authority to any state or local

agency to infringe upon the privacy of any family,

home, or business, except by lawful warrant.

FLA. STAT. § 790.173(2) (1997).

In the present case, police received an anonymous tip

that “several young black males were standing at a specified

bus stop during daylight hours” and that one of them, in a

“plaid looking” shirt, was carrying a gun. J.L. v. State of

Florida, 727 So.2d 204, 205 (Fla. 1998). “The three males

were engaged in no suspicious or illegal conduct and no

additional suspicious circumstances were observed by the

officers.” Id. The officers, without any questioning or further

4

investigation, seized and frisked the three black males. Id. A

firearm was recovered from J.L.’s pocket. Id.

OPINION BELOW

The opinion of the Florida Supreme Court is reported

as J.L. v. State of Florida, 727 So.2d 204 (Fla. 1998). The

opinion of Florida’s Third District Court of Appeal is reported

as State v. J.L., 689 So. 2d 1116 (Fla. 3d DCA 1997).

“At trial, J.L.°s motion to suppress the gun was

granted.” 727 So.2d at 205. The Third District Court of

Appeals reversed and remanded. 689 So. 2d at 1118. The

Florida Supreme Court quashed the decision of the Court of

Appeals, “declin{ing] the State's invitation to create a firearm

Or weapons exception to the limitations on searches and

seizures set out in the Fourth Amendment to the United States

Constitution and the parallel provisions of the Florida

Constitution.” 727 So.2d at 209 and 205. This Court granted

the petition for certiorari on November 1, 1999.

SUMMARY OF ARGUMENT

The creation of a “firearms exception” to the Fourth

Amendment would be unconstitutional. Neither the Fourth

Amendment nor its Florida constitutional counterpart provides

for a “firearm exception” to their protections. U.S. CONST.

amend. IV and FLA. CONST. art. I, § 12. Furthermore, both

the federal Bill of Rights and the Florida Declaration of Rights

make the possession of firearms a fundamental civil right. U.S.

CONST. amend. II and FLA. CONST. art. I, § 8.

The effect of allowing a "firearms exception" would be

the equivalent of saying that there are no unreasonable

searches and seizures, and thus no Fourth Amendment

rights, so long as the anonymous informant uses the

magic word "firearm." To allow such an exception

5

would threaten the basic protections of this nation's

Constitution.

727 So.2d at 210 (Harding, C.J., concurring).

Of course, such an exception to the Fourth

Amendment’s protections would have a disparate impact upon

blacks, other minorities, and the poor. It is doubtful that the

policemen in the present case, upon the anonymous tip only,

would have approached three white men in business suits in an

affluent neighborhood, and, without further investigation and

without any introduction or explanation, seized and frisked the

three.

The fact is that J.L. and his two friends were not

engaged in any illegal or suspicious activities. Furthermore, the

possession of a firearm is not illegal. "The tip did not involve

suspicious behavior which the police could have verified as

suspicious upon arrival; rather the tip involved innocent details,

none of which involved incriminating or criminal behavior."

727 So.2d at 207. It is hard to escape the conclusion that J.L.

and his two friends were seized and frisked because the tip

involved the words “black” and “gun.”

Of course, this is not surprising, as the history of gun

control in America has been one of discrimination,

disenfranchisement and oppression of blacks, other racial and

ethnic minorities, immigrants, and other unwanted elements.

Robert J. Cottrol and Raymond T. Diamond, Never Intended

to be lied to the White Population: Firearms Regulation

and Racial Disparity-- edeemed South's Legacy to a

National Jurisprudence?, 70 Chi. Kent L. Rev. 1307-1335

(1995); Robert J. Cottrol and Raymond T. Diamond, The

Second Amendment: Toward an Afro-Americanist

Reconsideration, 80 Georgetown L.J. 309-361 (1991);

Raymond G. Kessler, Control and Political Power, 5 Law

& Pol’y Q. 381 (1983). Gun control laws were often

6

specifically enacted to disarm and facilitate repressive action

against these groups. Id.

The disarmament and oppression of newly freed blacks

in the South after the Civil War, moved the Reconstruction

Congress to pass civil rights laws and the Fourteenth

Amendment in order to guarantee to the freedmen, amongst

other protections, the protections afforded by the Second

Amendment’s individual fundamental right to keep and bear

arms.

More recent, facially neutral, gun control laws have

been enacted for the alleged purpose of controlling crime.

Often, however, the actual purpose or the actual effect of such

laws has been to discriminate or oppress certain groups. Id.; Ex

Parte Lavinder, 88 W.Va. 713, 108 S.E. 428 (1921) (striking

down martial law regulation inhibiting possession and carrying

of arms). As Justice Buford of the Florida Supreme Court

noted in his concurring opinion narrowly construing a Florida

gun control statute:

I know something of the history of this legislation. The

original Act of 1893 was passed when there was a great

influx of negro laborers in this State drawn here for the

purpose of working in turpentine and lumber camps.

The same condition existed when the Act was amended

in 1901 and the Act was passed for the purpose of

disarming the negro laborers ... . The statute was never

intended to be applied to the white population and in

practice has never been so applied ... . [T]here has never

been, within my knowledge, any effort to enforce the

provisions of this statute as to white people, because it

has been generally conceded to be in contravention of

the Constitution and nonenforceable if contested.

Watson v. Stone, 148 Fla. 516, 524, 4 So.2d 700, 703 (1941)

(Buford, J., concurring).

-

The worst abuses at present occur under the mantle of

facially neutral laws that are, however, enforced in a

discriminatory manner. Even those laws that are passed with

the intent that they be applied to all, are often enforced in a

discriminatory fashion and have a disparate impact upon

blacks, the poor and other minorities. Present day enforcement

of gun laws are often targeted at minorities and the poor and

often result in iliegal searches and seizures of innocent minority

and poor citizens.

The creation of a “firearms exception” to the Fourth

Amendment would not only be violative of the Fourth

Amendment but would also be an invitation to unjustifiably

seize and frisk any citizen if an anonymous source uses the

magic word “gun” or “firearm.” If the past and present are any

indication, then it will be minorities (say for instance, three

black males at a bus stop) who will be the primary victims of

such unwarranted searches and seizures.

ARGUMENT

I. GUN CONTROL MEASURES HAVE BEEN AND

ARE USED TO DISARM AND OPPRESS

BLACKS AND OTHER MINORITIES

A. Gun Control in the Slave Codes

The development of racially based slavery in the

seventeenth century American colonies was accompanied by

the creation of laws meting out separate treatment and granting

separate rights on the basis of race. An early sign of such

emerging restrictions and one of the most important legal

distinctions was the passing of laws denying free blacks the

right to keep arms. "In 1640, the first recorded restrictive

legislation passed conceming blacks in Virginia excluded them

from owning a gun." Lee B. Kennett and James LaVerne

Anderson, The Gun in America: The Origins of a National

Dilemma 50 (1975).

Virginia law set Negroes apart from all other groups ...

by denying them the important right and obligation to

bear arms. Few restraints could indicate more clearly

the denial to Negroes of membership in the White

community. This first foreshadowing of the slave codes

came in 1640, at just the time when other indications

first appeared that Negroes were subject to special

treatment.

W. Jordan, White over Black: American Attitudes Toward the

Negro, 1550-1812 78 (1968).

In the later part of the 17th Century fear of slave

uprisings in the South accelerated the passage of laws dealing

with firearms possession by blacks. In 1712, for instance, South

Carolina passed "An act for the better ordering and governing

of Negroes and Slaves" which included two articles particularly

relating to firearms ownership and blacks. 7 Statutes at Large

of South Carolina 353-54 (D.J. McCord ed. 1836-1873).

Virginia passed a similar act entitled "An Act for Preventing

Negroes Insurrections." 2 Statutes at Large; Being a Collection

of All the Laws of Virginia, From the First Session of the

Legislature, in the Year 1619, 481 (W.W. Henning ed. 1823).

Thus, in many of the antebellum states, free and/or

slave blacks were legally forbidden to possess arms. State

legislation which prohibited the bearing of arms by blacks was

held to be constitutional due to the lack of citizen status of the

Afro-American slaves. State v. Newsom, 27 N.C. 250 (1844).

Cooper v. Mayor of Savannah, 4 Ga. 68, 72 (1848). Legislators

simply ignored the fact that the U.S. Constitution and most

state constitutions referred to the right to keep and bear arms as

a right of the "people" rather than of the "citizen". Stephen

Halbrook, The Jurisprudence of the Second and Fourteenth

Amendments, 4 Geo. Mason U. L. Rev. 1, 15 (1981).

9

Chief Justice Taney argued, in the infamous Dred Scott

case, that the Constitution could not have intended that free

blacks be citizens:

For if they were so received, and entitled to the

privileges and immunities of citizens, it would exempt

them from the operations of the special laws and from

the police regulations which they [the states] considered

to be necessary for their own safety. It would give to

persons of the negro race, who were recognized as

citizens in any one State of the Union, the right to enter

every other State whenever they pleased, ... [A|nd it

would give them the full liberty of speech in public and

in private upon all subjects upon which its own citizens

might speak; to hold public meetings upon political

affairs, and to keep and carry arms wherever they went.

Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 416-17 (1856)

(emphasis added). In a later part of the opinion, Justice Taney

enumerated the constitutional protections afforded to citizens

by the Bill of Rights:

Nor can Congress deny to the people the right to

keep and bear arms, nor the right to trial by jury, nor

compel any one to be a witness against himself in a

criminal proceeding.

Id. at 450. Clearly, the Court viewed the right to keep and bear

arms as one of the fundamental individual rights guaranteed to

American citizens by the Bill of Rights; which, blacks, who

according to the Court were not American citizens, could not

enjoy.

10

B. Black Codes, Reconstruction and _ the

Fourteenth Amendment: A Fundamental

Individual Right to Keep And Bear Arms

After the Civil War, southern legislatures adopted

comprehensive regulations, Black Codes, by which the new

freedmen were denied many of the rights that white citizens

enjoyed. These Black Codes often prohibited the purchase or

possession of firearms by freedmen. The Special Report of the

Anti-Slavery Conference of 1867 noted with particular

emphasis that under these Black Codes blacks were “forbidden

to own or bear firearms, and thus were rendered defenseless

against assaults.” Reprinted in H. Hyman, The Radical

Republicans and Reconstruction 219 (1967).

Mississippi's Black Code included the following

provision:

Be it enacted ... [t]hat no freedman, free negro or

mulatto, not in the military ... and not licensed so to do

by the board of police of his or her county, shall keep or

carry firearms of any kind, or any ammunition, ... and

all such arms or ammunition shall be forfeited to the

informer ... .

1866 Miss. Laws ch. 23, §1, 165 (1865).

In response to these Black Codes and the South’s

deprivation of the civil rights of the freedmen, the US.

Congress enacted a series of civil rights bills and the Fourteenth

Amendment. The legislative histories of these acts and the

Fourteenth Amendment are replete with denunciations of the

disarmament of blacks and state the intent of the drafters to

guarantee to the freedmen the ind*vidual right to keep and bear

arms for oye 3 regen Don B. Kates, Jr., Handgun

pres mo 82 Mich. Bee ioe. 204, 256 (1983), ‘ Halbrook,

supra, 4 Geo. Mason U. L. Rev. at 21-26. Akhil Reed Amar,

The Bill of Rights 264-266 (1998). The aforementioned intent

was “[o]ne of the core purposes of the Civil Rights Act of 1866

and of the Fourteenth Amendment.” Amar, supra, The Bill of

Rights 264. See also, er P. Halbrook. Ereedmen, the

1876 (1998).

One of these civil rights acts was the Freedman’s

Bureau Act, which required that “laws ... concerning personal

liberty, personal security, and the acquisition, enjoyment, and

disposition of estate, real and personal, including the

constitutional right to bear arms, shall be secured to and

enjoyed by all the citizens.” 14 Stat 173, 176 (1866) (emphasis

added).

In support of Senate Bill No. 9, which declared as void

all laws in the former rebel states which recognized inequality

of rights based on race, Senator Henry Wilson (R., Mass.)

explained that: "In Mississippi rebel State forces, men who

were in the rebel armies, are traversing the State, visiting the

freedmen, disarming them, perpetrating murders and outrages

upon them ... ." Cong. Globe, 39th Cong., 1st Sess. 40 (1865).

The framers of the Civil Rights Act of 1866 argued that

the issue of the right to keep and bear arms by the newly freed

slaves was of vital importance. Senator William Salisbury (D..

Del.) stated that "[iJn most of the southern States, there has

existed a law of the State based upon and founded in its police

power, which declares that free negroes shall not have the

possession of firearms or ammunition. This bill proposes to

take away from the States this police power." Id. at 478.

Representative Henry J. Raymond (R., N.Y.) explained that the

rights of citizenship entitled the freedmen to all the rights of

United States citizens: "He has a defined status: he has a

country and a home; a right to defend himself and his wife and

children; a right to bear arms; a right to testify in the Federal

Courts ...." Id. at 1266.

12

During the debate on the Fourteenth Amendment,

Kansas Senator Samuel Pomeroy asked:

And what are the safeguards of liberty under our form

of Government? There are at least, under our

Constitution, three which are indispensable--

l. Every man should have a homestead,

that is, the right to acquire and hold one, and the right

to be safe and protected in that citadel of his love... .

2. He should have the right to bear arms for

the defense of himself and family and his homestead.

And if the cabin door of the freedman is broken open

and the intruder enters for purposes as vile as were

known to slavery, then should a well-loaded musket be

in the hand of the occupant to send the polluted wretch

to another world, where his wretchedness will forever

remain complete; and

3. He should have the ballot ... .

Cong. Globe, 39th Cong., Ist Sess 1182 (1866).

The legislators were specifically concerned with the

violation in the South of the freedman’s right to keep and bear

arms.

Senator Howard . . . explicitly invoked "the right to

keep and bear arms" in his important speech

cataloguing the "personal rights" to be protected by the

Fourteenth Amendment. Howard and others may have

been influenced by the antebellum constitutional

commentator William Rawle, who had argued in his

1825 treatise that the Second Amendment as written

limited both state and federal government ... .

13

Akhil Reed Amar, The Bill of Rigitts as a Constitution, 100

Yale L.J. 1131, 1167 (1991) (quoting Cong. Globe, 39th Cong..,

Ist Sess. 2766 (1866)).

[I]t is abundantly clear that the Republicans wished to

give constitutional sanction to states’ obligation to

respect such key provisions as freedom of speech, the

right to bear arms, trial by impartial jury .. . . The

Freedman's Bureau had already taken steps to protect

these rights, and the Amendment was deemed

necessary, in part, precisely because every one of them

was being systematically violated in the South in 1866.

Eric Foner, Reconstruction 258-59 (1988) (emphasis added).

Within three years of the adoption of the fourteenth

amendment in 1868, Congress was considering legislation to

suppress the Ku Klux Klan. In a report on violence in the

South, Representative Benjamin F. Butler (R., Mass.) stated

that the right to keep arms was absolutely necessary for

protection. He noted instances of "armed confederates"

terrorizing the negro, and "in many counties they have preceded

their outrages upon him by disarming him, in violation of his

right as a citizen to 'keep and bear arms’ which the Constitution

expressly says shall never be infringed." H.R. Rep. No. 37, 41st

Cong., 3rd Sess. 3 (1871).

The anti-KKK bill was originally introduced to the

House Judiciary Committee with the following provision:

That whoever shall, without due process of law, by

violence, intimidation, or threats, take away or deprive

rs , ts

gemma eager sy ay onsen ble | ion for the def

, Shall be deemed

guilty of a larceny thereof, and be punished as provided

in this act for a felony.

14

Cong. Globe, 42nd Cong., Ist Sess. 174 (1871) (emphasis

added).

Representative Butler explained the purpose of this

provision:

Section 8 is intended to enforce the well-known

constitutional provision guaranteeing the right in the

citizen to ‘keep and bear arms,’ ... . This provision

seemed to your committee to be necessary, because they

had observed that, before these midnight marauders

made attacks upon peaceful citizens, there were very

many instances in the South where the sheriff of the

county had preceded them and taken away the arms of

their victims. This was especially noticeable in Union

County, where all the negro population were disarme<’

by the sheriff only a few months ago under the order ot

the judge ... ; and then, the sheriff having disarmed the

citizens, the five hundred masked men rode at night and

murdered and otherwise maltreated the ten persons who

were there in jail in that county.

H.R. Rep. No. 37, 41st Cong., 3rd Sess. 78 (1871).

The drafters of the civil rights acts and of the Fourteenth

Amendment specifically intended to protect the individual

fundamental right of the freedmen to keep and bear arms.

Amar, supra, 100 Yale L.J. 1131. Amar, supra, The Bill of

Rights. Halbrook, supra, 4 Geo. Mason U. L. Rev. 1. Stephen

P. Halbrook, - /

ee eee 5 Seton n Halll ang J. pre]

(1995).

The [Reconstruction] Congressmen of this period were

hardly interested in strengthening the state militias . .

. Or in reinforcing states’ rights. The Congressional

concern about the constitutional right to keep and bear

15

arms was plainly a concern about the self-defense rights

of individual citizens, especially freedmen.

David B. Kopel, The Second Amendment in the Nineteenth

Century, 1998 B.Y.U. L. Rev. 1359, 1453-54 (1998). As noted

constitutional scholar Akhil Reed Amar commented, the focus

of the Second Amendment had changed:

In short, between 1775 and 1866 the poster boy of arms

morphed from the Concord minuteman to the Carolina

freedman. The Creation motto, in effect, was that if

arms were outlawed, only the central government

would have arms. In Reconstruction a new vision was

aborning: when guns were outlawed, only the Klan

would have guns. This idea, focusing on private

violence and the lapses of local government rather than

on the public violence orchestrated by central soldiers,

is far closer to the unofficial motto of today's National

Rifle Association, “When guns are outlawed, only

outlaws will have guns.”

Amar, supra, The Bill of Rights, at 266.

C. Post-Reconstruction

Even after the passage of the Civil Rights Act and the

Fourteenth Amendment, southern states continued in their

effort to disarm blacks. Some Southern states reacted to the

federal acts by conceiving a means to the same end: banning a

particular class of firearms, in this case cheap handguns, which

were the only firearms the poverty-stricken freedmen could

afford. William Tonso, Gun Control: White Man's Law,

Reason, Dec. 1985, at 23.

In the very first legislative session after white

supremacists regained control of the Tennessee legislature in

1870, that state set the earliest southern postwar pattern of legal

restrictions by enacting a ban on the carrying, "publicly or

16

privately," of, among other things, the "belt or pocket pistol or

revolver." Andrews v. State, 50 Tenn. (3 Heisk.) 165, 172

(1871) (citing "An Act to Preserve the Peace and Prevent

Homicide"). In 1879, the General Assembly of Tennessee

banned the sale of any pistols other than the expensive "army

or navy" model revolvers. State v. Burgoyne, 75 Tenn. 173,

174 (1881) (citing "An Act to Prevent the Sale of Pistols").

Don B. Kates, Jr., Toward A History of Handgun Prohibition

in the United States in Restricting Handguns: The Liberal

Skeptics Speak Out 14 (D. Kates ed. 1979).

In 1881, Arkansas followed Tennessee's law by enacting

a virtually identical "Saturday Night Special Law," which

again was used to disarm blacks. Dabbs v. State, 39 Ark. 353

(1882). Instead of formal legislation, other deep South states

simply continued, in violation of the Fourteenth Amendment,

to enforce the pre-emancipation statutes prohibiting the

possession of firearms by blacks. Kates, supra, Toward A

History of Handgun Prohibition in the United States, at 14.

A different route was taken in Alabama, Texas, and

Virginia: there, exorbitant business or transaction taxes were

imposed in order to price handguns out of the reach of blacks.

An article in Virginia's university law review called for

registration and a “prohibitive” sales tax on handguns as a way

of disarming blacks. Comment, ing Concealed Weapons,

15 Va. L. Reg. 391, 391-92 (1909).

In many jurisdictions systems were emplaced where

retailers would report to local authorities whenever blacks

purchased firearms or ammunition. The sheriff would then

arrest the purchaser and confiscate the firearm. Kates, supra,

Toward A History of Handgun Prohibition in the United States,

at 14. Mississippi legislated this system by enacting the first

registration law for retailers in 1906, requiring retailers to

maintain records of all pistol and pistol ammunition sales, and

to make such available to authorities for inspection. Id.

17

D. United States y. Cruikshank

Federal prosecutors, invoking the new civil rights laws,

brought cases against KKK members and others who had

violated the civil nights of freedmen. Many of these

prosecutions involved charges that the defendants violated the

Second Amendment rights of freedmen by confiscating the

freedmen’s firearms. See Kermit L. Hall, Political Power and

Constitutional Legitimacy: The South Carolina Ku Klux Klan

Trials, 1871-1872, 33 Emory L.J. 921 (1984). One of these

cases, arising out of the disarmament and murder of armed

blacks in the Colfax courthouse (also known as the “Colfax

Massacre”), and a subsequent federal prosecution of Klansmen

for violation of the freedman’s civil rights under the

Enforcement Acts, went to the Supreme Court. See 16 Stat. 140

§ 6 (1870); see also 18 U.S.C. §§ 241-242 (1994). United

States v. Cruikshank, 92 U.S. 542 (1875). The indictment in

Cruikshank charged, inter alia, a conspiracy by Klansmen to

prevent blacks from exercising their civil rights, including the

right of assembly and the right to keep and bear arms for lawful

purposes.

Cruikshank upheld the Klan's repressive actions against

blacks in the South by holding the Enforcement Acts

unconstitutional. Cruikshank, 92 U.S. 542. The Court held

that because the rights of the victimized freedmen, including

the right to free speech and the right to keep and bear arms,

existed independently of the Constitution, and the first and

second amendments guaranteed only that such rights shall not

be infringed by the federal government, the federal government

had no power to punish a violation of such rights by private

individuals or the states. The Fourteenth Amendment offered

no relief, the Court held, because the case involved a private

conspiracy and not state action; the aggrieved citizens could

seek protection and redress only from the state government and

not from the federal government. Id. at 553-54.

18

Cruikshank signaled the end of reconstruction and, with

the Slaughterhouse Cases, that century’s defeat of the

Fourteenth Amendment’s attempt to make the Bill of Rights

effective against state government abuses. "Firearms in the

Reconstruction South provided a means of political power for

many. They were the symbols of the new freedom for blacks

.... Inthe end, white southerners triumphed and the blacks were

effectually disarmed." Kennett and Anderson, supra, at 155.

E. Gun Control in the Twentieth Century

At the end of the 19th century, Southern states began

formalizing firearms restrictions in response to an increased

concern about firearms ownership by certain whites, such as

agrarian agitators and labor organizers. In 1893, Alabama, and

in 1907, Texas, began imposing heavy business/transaction

taxes on handgun sales in order to resurrect economic barriers

to ownership. South Carolina, in 1902, banned all pistol sales

except to sheriffs and their special deputies, which included

company strongmen and the KKK. Kates, supra, Toward A

History of Handgun Prohibition in the United States, at 14-15.

The Supreme Court of North Carolina, in striking down

a local statute which prohibited the open carrying of firearms

without a permit in Forsyth County, stated:

To exclude all pistols, however, is not a regulation, but

a prohibition, of arms which come under the

designation of arms which the people are entitled to

bear. This is not an idle or an obsolete guaranty, for

there are still localities, not necessary to mention, where

great corporations, under the guise of detective agents

or private police, terrorize their employees by armed

force. If the people are forbidden to carry the only arms

within their means, among them pistols, they will be

completely at the mercy of these great plutocratic

organizations.

—

19

State v. Kerner, 181 N.C. 574, 578, 107 S.E. 222, 225 (1921).

In the Northeast, the period from the 1870's to the mid-

1930's was characterized by strong xenophobic reactions to

Eastern and Southern European immigrants. Armed robbery in

particular was associated with the racial stereotype in the public

mind of the East and South European immigrant as lazy and

inclined to violence and espousing anarchy. The fear and

suspicion of these "undesirable" immigrants, together with a

desire to disarm labor organizers, led to a concerted campaign

by organizations such as the Immigration Restriction League

and the American Protective Association, for the enactment of

a flat ban on the ownership of firearms, or at least handguns, by

aliens. Kates, supra, Toward A History of Handgun

Prohibition in the United States, at 15-16.

In 1911, New York enacted the Sullivan law. N.Y.

PENAL LAW § 1897 (Consol. 1909)(amended 1911). "Of

proven success in dealing with political dissidents in Central

European countries, this system made handgun ownership

illegal for anyone without a police permit." Kates, supra,

Toward A History of Handgun Prohibition in the United States,

at 15. The New York City Police Department thereby acquired

the official and wholly arbitrary authority to deny or permit the

possession of handguns; which the department used in its effort

to disarm the city's Italian population. The Sullivan law was

designed to

strike hardest at the foreign-born element ... . As early

as 1903 the authorities had begun to cancel pistol

permits in the Italian sections of the city. This was

followed by a state law of 1905 which made it illegal

for aliens to possess firearms ‘in any public place’. This

provision was retained in the Sullivan law.

Kennett and Anderson, supra, at 177-78.

20

Most of the American handgun ownership restrictions

adopted between 1901 and 1934 followed on the heels of

highly publicized incidents involving the incipient black civil

rights movement, foreign-born radicals or labor agitators.

Kates, supra, Zoward A History of Handgun Prohibition in the

United States, at 18-19.

After World War I, a generation of young blacks, often

led by veterans familiar with firearms and willing to fight fur

the equal treatment that they had received in other lands, began

to assert their civil rights. In reaction, the Klan again became

a major force in the South in the 1910's and 1920's. Often

public authorities stood by while murders, beatings and

lynchings were openly perpetrated upon helpless black citizens.

And once again, gun control laws made sure that the victims of

the Klan's violence were unarmed and did not possess the

ability to defend themselves, while at the same time cloaking

the specially deputized Klansmen in the safety of their

monopoly of arms. Id. at 19.

The resurgence of the Klan was not limited to the

South, but was present in force in southern New Jersey, Illinois,

Indiana, Michigan and Oregon. All of these states enacted

either handgun permit laws or laws barring alien handgun

possession between 1913 and 1934. The Klan targeted not only

blacks, but also Catholics, Jews, labor radicals, and the

foreignborn; and these people also ran the risk of falling victim

to lynch mobs or other more clandestine attacks, often after the

victims had been disarmed by state or local authorities. Id. at

19-20.

—— Raa >

21

Il. CURRENT GUN CONTROL EFFORTS: A

LEGACY OF RACISM

Behind current gun control efforts often lurks the

remnant of an old prejudice, that the lower classes and

minorities, especially blacks, are not to be trusted with

firearms. Today the thought remains among gun control

advocates: if you let the poor or blacks have guns, they will

commit crimes with them. Even noted anti-gun activists have

admitted this. Gun control proponent and journalist Robert

Sherrill frankly admitted that the Gun Control Act of 1968 was

“passed not to control guns but to control Blacks.” Robert

Sherrill, The Saturday Night Special 280 (1972). “Itis difficult

to escape the conclusion that the ‘Saturday night special’ is

emphasized because it is cheap and it is being sold to a

particular class of people. The name is sufficient evidence - the

reference is to ‘nigger-town Saturday night.” Barry Bruce-

Briggs, The Great American Gun War, The Public Interest, Fall

1976 at 37.

The worst abuses at present occur under the mantle of

facially neutral laws that are, however, enforced in a

discriminatory manner. Even those laws that are passed with

the intent that they be applied to all, are often enforced in a

discriminatory fashion and have a disparate impact upon

blacks, the poor and other minorities. In many jurisdictions

which require a discretionary gun permit, licensing authorities

have wide discretion in issuing a permit, and those jurisdictions

unfavorable to gun ownership, or to the race, politics, or

appearance of a particular applicant frequently maximize

obstructions to such persons while favored individuals or

groups may experience no difficulty in the granting of a permit.

Hardy and Chotiner, The Potential for Civil Liberties

Violations in the Enforcement of Handgun Prohibitions in

Restricting Handguns: the Liberal Skeptics Speak Out, supra.

at 209-10; Tonso, supra, at 24. In St. Louis,

ee

22

permits are automatically denied ... to wives

who don't have their husband's permission,

homosexuals, and non-voters .... As one of my

students recently learned, a personal ‘interview’

is now required for every St. Louis application.

After many delays, he finally got to see the

sheriff who looked at him only long enough to

see that he wasn't black, yelled ‘he's alright’ to

the permit secretary, and left.

Don B. Kates, Jr., On Reducing Violence or Liberty, 1976 Civ.

Liberties Rev. 44, 56.

Permit systems which vest wide discretion in public or

police officials have been used on numerous occasions to

stymie civil rights efforts. See, Shuttlesworth v. City of

Birmingham, 394 U.S. 147, 148 (1969). New York's infamous

Sullivan law, originally enacted to disarm Southern and Eastern

European immigrants who were considered racially inferior and

religiously and ideologically suspect, continues to be enforced

in a racist and elitist fashion "as the police seldom grant hand

gun permits to any but the wealthy or politically influential."

Tonso, supra, at 24.

New York City permits are issued only to the very

wealthy, the politically powerful, and the socially elite.

Permits are also issued to: private guard services

employed by the very wealthy, the banks, and the great

—— to ward heelers and political influence

Kates, /ntroduction, in Restricting Handguns: the Liberal

Skeptics Speak Out, supra, at 5.

23

A. By Prohibiting the Possession of Firearms,

the State Discriminates Against Minority

and Poor Citizens

The obvious effect of gun-prohibitions is to deny law-

abiding citizens access to firearms for the defense of

themselves and their families. That effect is doubly

discriminatory because the poor, and especially the black poor.

are the primary victims of crime and in many areas lack the

necessary police protection.

African Americans, especially poor blacks, are

disproportionately the victims of crime. The situation for

households headed by black women is particularly difficult. In

1977, more than half of black families had a woman head of

household. A 1983 report by the U.S. Department of Labor

found that

among families maintained by a woman, the poverty

rate for blacks was 51%, compared with 24% for their

white counterparts in 1977 ... . Families maintained by

a woman with no husband present have compromised

an increasing proportion of both black families and

white families in poverty; however, families maintained

by a woman have become an overwhelming majority

only among poor black families .... About 60% of the

7.7 million blacks below the poverty line in 1977 were

living in families maintained by a black woman.

U.S. Dept. of Labor, Time of Change: 1983 Handbook on

Women Workers 118 Bull. 298 (1983).

The problems of these women are far more than merely

economic. National figures indicate that a black female in the

median female age range of 25-34, is about twice as likely to be

robbed or raped as her white counterpart. She is also three

times as likely to be the victim of an aggravated assault. Id. at

90. See United States Census Bureau, U.S. Statistical Abstract

24

(1983). A 1991 DOJ study concluded that “[b]lack women

were significantly more likely to be raped than white women.”

Caroline Wolf Harlow, U.S. Dept. of Justice, Female Victims

of Violent Crime 8 (1991). “Blacks are eight times more likely

to be victims of homicide and two and one-half times more

likely to be rape victims. For robbery, the black victimization

rate is three times that for whites ... .” Paula D. McClain.

Fj : etaghaygy Same ‘tud )

Neighborhood Environments, 5 Law & Pol'y Q. 299. 301

(1983).

The need for the ability to defend oneself, family and

property, is much more critical in the poor and minority

neighborhoods ravaged by crime and without adequate police

protection. Id.; Don B. Kates, Handgun Control: Prohibition

Revisited, Inquiry, Dec. 1977, at 21. However, citizens have

no right .o demand or even expect police protection. Courts

have consistently ruled "that there is no constitutional right to

be protected by the state against being murdered by criminals

or madmen." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.

1982). Furthermore, courts have ruled that the police have no

duty to protect the individual citizen. DeShaney v. Winnebago

County Dep't of Social Serv., 489 U.S. 189 (1989); South v.

Maryland, 59 U.S. 396 (1855).

The fundamental civil rights regarding the enjoyment of

life, liberty and property, the right of self-defense and the right

to keep and bear arms, are merely empty promises if a

legislature is allowed to restrict the means by which one can

protect oneself and one's family. This constitutional

deprivation discriminates against the poor and minority citizen

who is more exposed to the acts of criminal violence and who

is less protected by the state.

Reducing gun ownership among law-abiding citizens

may significantly reduce the proven deterrent effect of

widespread civilian gun ownership on criminals, particularly in

25

regard to such crimes as residential burglaries and commercial

robberies. Of course, this effect will be most widely felt among

the poor and minority citizens who live in crime-ridden areas

without adequate police protection.

B. The Enforcement of Gun Prohibitions Spur

Increased Civil Liberties Violations,

Especially in Regard to Blacks and Other

Minorities.

Constitutional protections, other than those afforded by

the right to keep and bear arms, have been and are threatened

by the enforcement of restrictive firearms laws. The

enforcement of present firearms controls account for a large

number of citizen and police interactions, particularly in those

jurisdictions in which the purchase or possession of certain

firearms are prohibited. Between 1989 and 1998, arrests for

weapons carrying and possession numbered between 136,049

and 224,395 annually. FBI Uniform Crime Reports, Crime in

the United States Annual Reports(1989-1998) Table: Total

Arrests, Distribution by Age.

The most common and, perhaps, the primary means of

enforcing present firearms laws are illegal searches by the

police. A former Ohio prosecutor has stated that in his opinion

50% to 75% of all weapon arrests resulted from questionable,

if not clearly illegal, searches. Federal Firearms Legislation:

Hearings Before the Subcomm. on Crime of the House

Judiciary Committee, 94th Cong. 1589 (1975). [hereinafter

House Hearings]. A study of Detroit criminal cases found that

85% of concealed weapons carrying cases that were dismissed,

were dismissed due to the illegality of the search. This number

far exceeded even the 57% percent for narcotics dismissals, in

which illegal searches are frequent. Noie, Some Observations

on the Disposition of CCW Cases in Detroit, 74 Mich. L. Rev.

614, 620-21 (1976). A study of Chicago criminal cases found

that motions to suppress for illegal evidence were filed in 36%

26

of all weapons charges; 62% of such motions were granted by

the court. Critique, On the Limitations of Empirical Evaluation

of the Exclusionary Rule, 69 NW. U.L. Rev. 740, 750 (1974).

A Chicago judge presiding over a court devoted solely to gun

law violations has stated:

The primary area of contest in most gun cases is in the

area of search and seizure .... Constitutional search and

seizure issues are probably more regularly argued in

this court than anywhere in America .... More than half

these contested cases begin with the motion to suppress

... these arguments dispose of more contested matters

than any other.

House Hearings, supra, at 508 (testimony of Judge D. Shields).

These suppression hearing figures represent only a tiny

fraction of the actual number of illegal searches that take place

in the enforcement of current gun laws, as they do not include

the statistics for illegal searches that do not produce a firearm

or in which the citizen is not charged with an offense. The

American Civil Liberties Union has noted that the St. Louis

police department, in the mid-1970's, made more than 25,000

illegal searches "on the theory that any black, driving a late

model car has an illegal gun." However, these searches

produced only 117 firearms. Kates, Handgun Control:

Prohibition Revisited, supra, at 23.

In light of these facts, many of the proponents of gun

conirol have commented on the need to restrict other

constitutionally guaranteed rights in order to enforce gun

control or prohibition laws. Federal Appellate Judge Malco)m

urged the abandonment of the exclusionary rule in order to

better enforce gun control laws. Malcolm Richard Wilkey,

Why Suppress Valid Evidence?, Wall Street J., Oct. 7, 1977, at

14. Police Inspector John Domm called for a "reinterpretation"

of the Fourth Amendment to allow police to assault

-

ae — eae eee. fee

27

strategically located streets, round up pedestrians en masse, and

herd them through portable, airport-type gun detection

machines. Detroit Free Press, Jan. 26, 1977, at 4. Prominent

gun control advocates have flatly stated that "there can be no

right to privacy in regard to armament.” Norville Morris and

Gordon Hawkins, The Honest Politician's Guide to Crime

Control 69 (1970).

However, statistics and past history show that many

millions of otherwise law-abiding Americans would not heed

any gun ban. One should consider America's past experience

with liquor prohibition. Furthermore, in many urban

neighborhoods, especially those of poor blacks and other

minorities, the possession of a firearm for self-defense is often

viewed as a necessity in light of inadequate police protection.

Federal and state authorities in 1975 estimated that

there were two million illegal handguns among the population

of New York City. Selwyn Raab, 2 Million Illegal Pistols

Believed Within the City, N.Y. Times, Mar. 2, 1975, at 1,

(estimate by BATF); N.Y. Post, Oct. 7, 1975, at 5, col. 3

(estimate by Manhattan District Attorney). In a 1975 national

poll, some 92% of the respondents estimated that 50% or more

of handgun owners would defy a confiscation law. 121 Cong.

Rec. S. 189, 1 (daily ed. Dec. 19, 1975).

Even registration laws as opposed to outright bans,

measure a high percentage of non-compliance among the

citizenry. In regard to Illinois’ firearm owner registration law,

Chicago Police estimated the rate of non-compliance at over

two thirds, while statewide non-compliance was estimated at

three fourths. In 1976, Cleveland city authorities estimated the

rate of compliance with Cleveland's handgun registration law

at less than 12%. Kates, supra, Handgun Control: Prohibition

Revisited, at 20 n.1. In regard to citizens’ compliance with

Cleveland’s “assault gun” ban, a Cleveland Police Lieutenant

stated: “To the best of our knowledge, no assault weapon was

28

voluntarily turned over to the Cleveland Police Department ...

considering the value that these weapons have, it certainly was

doubtful individuals would willingly relinquish one.”

Associated Press, Cleveland Reports No Assault Guns Turned

In, Gun Week, Aug. 10, 1990, at 2.

In response to New Jersey's "assault weapon" ban, as of

the required registration date, only 88 of the 300,000 or more

affected weapons in New Jersey had been registered, none had

been surrendered to the police and only 7 had been rendered

inoperable. Masters, Assault Gun Compliance Law, Asbury

Park Press, Dec. 1, 1990, at 1. As of November 28, 1990, only

5,150 guns of the estimated 300,000 semiautomatic firearms

banned by the May 1989 California "Assault Gun" law had

been registered as required. Jill Walker, Few Californians

Register Assault Guns, Washington Post, Nov. 29, 1990, at

A27.

These results suggest that the majority of otherwise law

abiding citizens will not obey a gun prohibition law; much less

criminals, who will disregard such laws anyway. It is ludicrous

to believe that those who will rob, rape and murder will turn in

their firearms or any other weapons they may possess to the

police or be deterred from possessing them or using them by

the addition of yet another gun control law to the 20,000 plus

that are already in effect in the United States. James D. Wright,

Peter H. Rossi and Kathleen Daly, Under the Gun: Weapons.

Crime and Violence in America 244 (1983).

A serious attempt to enforce a gun prohibition would

require an immense number of searches of residential premises.

Furthermore, the bulk of these intrusions will, no doubt, be

directed against racial minorities, whose possession of arms the

enforcing authorities may view as far more dangerous than

illegal arms possession by other groups.

wx——_—— ———— ©)

—_—_—-_

29

As civil liberties attorney Kates has observed, when

laws are difficult to enforce, “enforcement becomes

progressively haphazard until the last of the laws are

used only against those who are unpopular with the

police.” Of course minorities, especially minorities who

don't 'know their place’, aren't likely to be popular with

the police, and those very minorities, in the face of

police indifference or perhaps even antagonism, may be

the most inclined to look to guns for protection - guns

that they can't acquire legally and that place them in

jeopardy if possessed illegally. While the intent of such

laws may not be racist, their effect most certainly is.

Tonso, supra, at 25.

Civil rights standards are already bearing the

repercussions of the actions of overzealous gun prohibitionists.

Take for instance the development of a new and lesser standard

of constitutional protection in regard to tenants in public

housing facilities.

The Richmond Housing Authority has banned the

possession of all firearms, whether operable or not, by tenants

in public housing projects. Richmond Tenants Org. v.

Richmond Dev. & Hous. Auth., No. C.A. 3:90CV00576 (E.D.

Va. Dec. 3, 1990). In 1988, the Chicago Housing Authority

(CHA) and the Chicago Police Department (CPD) enacted and

enforced an official policy, Operation Clean Sweep, which

applied to all housing units owned and operated by the CHA,

the purpose of which was the confiscation of firearms and

illegal narcotics. Complaint, Rose Summeries, et al. v.

Chicago Housing Authority, et al., Case No. 88C 10566 (N.D.

Ill. Nov. 30, 1988). The warrantless search policy consisted of

indiscriminate random sweep searches, using metal detectors,

of the CHA tenants’ residences and personal effects found

therein, and the detention and search of residents and guests, all

without warning and without probable cause or reasonable

30

articulate suspicion. CHA tenants who objected or attempted

to interfere with these warrantless searches were arrested. Id.

at 78.

Of course, all of the CHA tenants were poor, and the

vast majority of them were hispanic cr black. Once again,

oppressive firearms laws were used to facilitate the deprivation

of the constitutional rights of those minorities.

CONCLUSION

The aforementioned violations of minorities’ and poor

peoples’ civil rights by the overzealous enforcement of firearms

prohibitions occurs already in the absence of a “firearms

exception” to the Fourth Amendment. The creation of such a

“firearms exception” to the Fourth Amendment would not only

be unconstitutional (as neither the Fourth Amendment nor the

parallel provision of the Florida Constitution provides for such

a “firearm exception” to their commands) but would also be an

invitation to unjustifiably seize and frisk any citizen if an

anonymous source uses the magic word “gun” or “firearm.” If

the past and present are any indication, then it will be

minorities (say for instance, three black males at a bus stop)

who will be the primary victims of such unwarranted searches

and seizures.

The judgment below should be affirmed.

Respectfully Submitted,

* 4 Stefan Bijan Tahmassebi

Attorney for Amicus Curiae

Congress of Racial Equality, Inc.

3117 Woodland Lane

Alexandria, Virginia 22309

(703) 799-5867