# Amicus Curiae Brief — Florida v. J. L.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0284%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 266

## Text

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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 .....

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0284%3A15. Public record. Not legal advice.