Social Norming The 2nd Amendment

Social Norming The Second Amendment Reinstating a Constitutional Norm as a Social Norm Through Social Norms Marketing

Second Edition

Don Hamrick U.S. Merchant Seaman 5860 Wilburn Road Wilburn, AR 72179 [email protected] July 23, 2002

© 2002 Don H amrick

Social Norming The Second Amendment Reinstating a Constitutional Norm as a Social Norm Through Social Norms Marketing by Don Hamrick U.S. Merchant Seaman July 23, 2002 © 2002 Don Hamrick

In the formation of such a government, it is not only the right, but the indispensable duty of every citizen to examine the principles of it, to compare them with the principles of other governments, with a constant eye to our particular situation and circumstances, and thus endeavor to foresee the future operations of our own system, and its effects upon human happiness. Noah Webster, An Examination Into The Leading Principles of the Federal Constitution: “A Citizen of America” Philadelphia, October 17, 1787 1

In this paper, as a citizen, I examine the principles of our government, first examining the legal aspects, then applying social psychology concepts of social norms for a fresh look at the gun control debate. In the scheme of life certain things are constant while other things are fleeting variables. The U.S. Constitution in this equation is meant to be the constant, a static factor of life and law. The Second Amendment was originally intended to preserve unlicensed, open-carry handgun (and rifle), to preserve one’s own life, limb, property, liberty, the community, the state, and the nation by deterrence and armed force when necessary, without unjust retaliation by the state or the federal government with maliciously retaliatory prosecutions. There is nearly nothing left for the U.S. Congress to criminalize in regards to our Second Amendment rights to gun ownership and usage. The only other fallacious law to enact is total gun prohibition, a path taken by England and Australia resulting in devastating jumps in murder, home invasions, and other violent crimes. I suggest a different path. I call for a return to our originally intended Second Amendment path that every law-abiding citizen be armed for his personal security, the defense of others, his community, his state (cf. the security of a free state clause of the Second Amendment) and for the security of the nation. Restoring personal security enhances national security. That premise is undeniable! I propose taking the Social Norms Marketing approach to the Second Amendment, laying the foundation for others to nurture and develop to effect that restoration. With the recent 68 year campaign to restrict our Second Amendment rights, from the National Firearms Act of 1934 to the present, effecting to the extent that nearly everything a citizen could lawfully and morally do with a firearm has been criminalized and through this criminalization of a constitutional right we are now seeing its fatal impact, not only on effecting victim disarmament, but also on weakening national security in the wake of the September 11, 2001 terrorist attacks. Aaron Zelman, Executive Director, Jews for the Preservation of Firearms Ownership has posted an open letter to President George W. Bush and key members of the Bush Administration titled,

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The Libra ry of Am erica, The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification: Part One: September 1787 to February 1788; pp. 129-131.

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A Dangerous Gap in U.S. Homeland Security, dated February 8, 2002 at their Web site.2 An excerpt from that letter quantifies the basis for social norming the Second Amendment: There are not enough FBI agents, National Guardsmen, or police to cover every corner of America. No number of surveillance cameras or checkpoints can do that job (although they may help turn the U.S. into a police state in the vain attempt to achieve "security". Spending $61.8 million on increased FBI surveillance capabilities, or $157.6 million to enhance that agency's computer systems, as your new budget proposes to do, can't protect Americans today, next week, or next month, and may never protect us all. But there are 285 million Americans who are on hand now, in every big-city neighborhood, small town, and rural crossroads. Some 80 million of them already own firearms, and millions are prepared to bring their own weapons and ammunition -- at no cost to the U.S. taxpayers -- to defend their homeland.” And to defend themselves personally against the common criminal, I will add. In Nicholas J. Johnson’s Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1, 25 (1992), under “Personal Security as a Fundamental Interest” he states: A predominant reason to protect a right to self-defense and personal security is that such an interest may be a prerequisite to exercising and enjoying those rights that are explicitly enumerated. The dead probably have very little use for the First, Fourth and Fifth Amendments. Writings that have contributed to our political and constitutional tradition confirm the idea that individual security and self-defense are basic and natural human concerns. American colonists viewed self-defense not just as a right but as an obligation. Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 229-30 (1983) offers the following quotation from a 1747 Philadelphia sermon in support: He that suffers his life to be taken from him by one that hath no authority for that purpose, when he might preserve it by defense, incurs the Guilt of self murder since God hath enjoined him to seek the continuance of his life, and Nature itself teaches every creature to defend himself.... Unlicensed national open-carry handgun is a “Constitutional Norm” and it was once a social norm. How did our nation advance itself from the social norm of national unlicensed open-carry to that of licensed state-issued concealed-carry, and continues toward a total ban on firearms, transforming a right into a privilege? Unlicensed “restricted to state boundaries” open-carry is the law in Virginia, Nevada, and Maine. But what of unrestricted, or minimally restricted, national open-carry? In Jeffrey R. Snyder’s Fighting Back: Crime, Self, and the Right to Carry a Handgun3 he states: There appears to have been no general statutory restrictions on the ability of citizens to carry arms in the American colonies (excluding, of course, the attempts of the English to disarm the colonists immediately preceding the American Revolution). Nor can one find any examples of general statutory restrictions of, or prohibitions against, the carrying of arms, either openly or concealed, in the early American states. That absence of restrictions corresponds perfectly to the historical fact that our

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http://www .jpfo.org/ale rt2002 0208 .htm

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Snyder, J effrey R., Fighting Back: Crime, Self, and the Right to Carry a Handgun. Cato Institute, Policy Ana lysis No. 284, October 22, 19 97. Qu oting from section, The “Ignoble Act” of Carrying Concealed W eapons. (Footnotes omitted)

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forebears understood that they had an individual right to possess and carry arms for defense, subject to the common law restriction, noted by Sir William Blackstone, that one could not carry such arms as were apt to terrify the people or make an affray of the peace. Restrictions on the concealed-carry of weapons first appeared in the South in the years preceding the Civil War; Kentucky’s were the first in 1813. Few persons had revolvers in those days, and the most feared of concealed weapons was the Bowie knife, not the handgun. By 1850 most Southern states, and Indiana, had prohibited the concealed-carry of weapons, including firearms. At the time the restrictions were enacted, then, people were generally free to carry firearms openly. Honest men engaged in lawful behavior had no reason to take pains to hide their weapons, for weapons were a part of everyday life. In a society in which open-carry was the norm, the natural presumption was that one was unarmed if his weapon was not in plain sight. In that context, concealment was regarded as an act of deception, an ignoble act designed to gain unfair or surprise advantage over others. Open-carry placed men in a position of equality with respect to one another by giving all fair warning whether any was armed. Since those who carried concealed weapons sought a deadly, unfair advantage, criminal or malicious intent was effectively presumed.4

The Dilemma for the Right of Citizen’s Arrest If carrying a concealed weapon was once presumed to be an act of criminal deception for the pursuit of criminal activity then why have we advanced to presume a license to carry concealed is any more trustworthy? Is licensed concealed carry a legalized form of entrapment against the criminal? With legal open-carry came duties to preserve the peace. The duty to behave within established social norms. The right and duty to make a citizen’s arrest came with it the responsibility to be knowledgeable and proficient in how and when to make a citizen’s arrest. In all instances the possession of a handgun was a prerequisite in making a citizen’s arrest. Laws restricting or prohibiting citizens from keeping and bearing arms in public, either concealed or openly worn, nullifies this right of citizen’s arrest in the pragmatic sense. Citing Corpus Jurus Secundum: Who May Arrest in General 5 (case citations omitted) Generally, statutes contain provisions authorizing certain persons to arrest without a warrant one who commits a crime or offense and setting out the conditions under which such authority may be exercised. Where the prescribed conditions are not present, such persons may not make arrest; the arresting authority should not be vested by inference. Peace officers and private persons may arrest one for a felony or a misdemeanor under the specified circumstances. Citing Corpus Jurus Secundum: Arrest by Private Persons6 (case citations omitted) In many instances a private person has the same right to arrest as a peace officer, even though there is time to obtain a warrant, and to take the person so arrested before a magistrate to be dealt with according to the law; and the right may be one conferred by statute. Such an arrest, also referred to as a citizen’s arrest, is as binding as an arrest by a police officer. It may be valid even though the citizen does not physically confront the defendant, as where a citizen directs a police officer to make the arrest and then observes the officer doing so. A citizen’s arrest or attempted arrest can create a dangerous situation, and one who attempts it does so at his peril. While a private person making an arrest is acting for and on behalf of the sovereignty and is subject to the inhibitions of the constitutional provisions against unlawful searches

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Emphasis m ine. Hereafter, all bolded and bolded-underlined text are my em phasis.

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6A C.J.S. § 11.

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6A C.J.S. § 12.

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and seizures, it has been held that the fact that a private person makes an arrest does not make the person an agent of the state and would not be a basis for prosecuting the private person under a statute which creates liability for subjecting, under color of state law, any person to deprivation of rights, privileges or immunities secured by the constitution and laws. Corpus Jurus Secundum footnoted the “ and one who attempts it does so at his peril”phrase with the following: Insane person: A private person acts at his own peril in arresting an alleged lunatic without a warrant. Employer’s liability: In making an arrest, employee does not act for his employer, and hence employer is not liable for arrest. Justification of arrest: In an action against a private person for making an arrest, he is prima facie a trespasser and must justify by affirmative pleading and proof. Since exercising one’s right to make a citizen’s arrest is wrought with such peril to one’s physical and legal state shouldn’t we have our Second Amendment right to keep and bear arms reinstated to the extent of national open carry, physically protecting ourselves, and be educated and trained to legally protect ourselves as well? And shouldn’t the government support this legal backing to insure that its citizens do not go around arresting everyone in society for every insignificant infraction of social sensibilities?

National Open-Carry Handgun as a Deterrent In John R. Lott, Jr.’s and William M. Landes’ Multiple Victim Public Shootings, Bombings, and Right-to-Carry Concealed Handgun Laws: Contrasting Private and Public Law Enforcement 7 their conclusion states: The results of this paper support the hypothesis that concealed handgun or shall issue laws reduce the number of multiple victim public shootings. Attackers are deterred and the number of people injured or killed per attack is also reduced, thus for the first time providing evidence that the harm from crimes that still occur can be mitigated. The results are robust with respect to different specifications of the dependent variable, different specifications of the handgun law variable, and the inclusion of additional law variables (e.g., mandatory waiting periods and enhanced penalties for using a gun in the commission of a crime). Not only does the passage of a shall issue law have a significant impact on multiple shootings but it is the only law related variable that appears to have a significant impact. Other law enforcement efforts from the arrest rate for murder to the death penalty to waiting periods and background checks are not systematically related to multiple shootings. We also find that shall issue laws deter both the number of multiple shootings and the amount of harm per shooting. Finally, because the presence of citizens with concealed handguns may be able to stop attacks before the police are able to arrive, our data also allows us to provide the first evidence on the reduction in severity of those crimes that still take place. I extrapolate from the above conclusion that if gun laws were repealed legalizing unlicensed national open-carry handgun that we will see a further reduction in the number of multiple victim public shootings exponentially, and even a reduction of single-victim murders, assaults and other violent crime. The Senate Subcommittee on the Constitution held a hearing on The Right to Keep and Bear Arms, U.S. Senate, 97th Congress, February 1982. In the Preface Senator Orrin G. Hatch said: If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after

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Lott, John R ., Jr. and W illiam M. L andes, Multiple Victim Public Shootings, Bombings, and Right-toCarry Concealed Handgun Laws: Contrasting Private and Public Law Enforcement John M. Olin Law & Economics Working Paper No. 73 (2d Series),The Law School, The University of Chicago. pp. 20-21.

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a century and a half of trying — that they must sweep under the rug the southern attempts at gun control in the 1870-1910 period, the northeastern attempts in the 1920-1939 period, the attempts at both Federal and State levels in 1965-1976 — establishes the repeated, complete and inevitable failure of gun laws to control serious crime.”

Open-Carry Handgun Supported by 9th & 13th Amendments A gun-free society is anti-social by nature. It allows the criminal element to easily prey upon the innocent. Gun control laws do nothing more than aid and abet the criminal element in the pursuit of criminal activity. In Marbury v. Madison 5 U.S. 137, 174 (1803), “It cannot be presumed that any clause in the constitution is intended to be without effect.” the rights of personal security, personal self-defense and even actions in defense of others are part of the unenumerated rights of the Ninth Amendment. The authority to exercise these rights are guaranteed by the involuntary servitude clause of the Thirteenth Amendment. Criminals and terrorists alike place their victims in a state of involuntary servitude in the commission of crimes and terrorist acts, regardless of how brief in time that may be. The means for U.S. citizens to exercise and enforce these rights are guaranteed by the right to keep and bear arms clause of the Second Amendment. On May 17, 2001 Attorney General John Ashcroft stated his legal opinion that “the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms.” On October 07, 2001 Jon Dougherty WorldNetDaily.com reported in his, Gun Rights Compared to Civil Rights: Groups Demand Ashcroft Enforce 2nd Amendment in States, reported: In what observers are calling a novel approach against gun control, two groups have launched a petition drive to force the Department of Justice to enforce gun rights with the same zeal it enforced civil rights in the 1950s and 1960s. The groups – Citizens of America and KeepAndBearArms.com – say they would like to see Attorney General John Ashcroft back his earlier voiced support for the Second Amendment with action. “Mr. Ashcroft says the right to bear arms is an individual right,” says Brian Puckett, head of COA, “and we’re saying if that’s so, then he should be enforcing that right in states where our right to keep and bear arms is being denied, in the same way the federal government enforced civil-rights laws in the ’50s and ’60s. “Denial of rights is costing lives, 8 not simply forcing people to drink from separate water fountains or go to segregated schools, and we want action, not more words,” he added. “On many occasions the U.S. Justice Department has sent teams of lawyers to force states, municipalities, agencies and officials to obey civil-rights statutes, resulting in laws being overturned and in legal actions against individuals,” said a statement published on the KABA website. Officials from both groups say they are targeting California first because it is the nation’s most populous state and has some of the most authoritarian gun-control laws on the books. “A big concern is that people will think this only applies to California – it doesn’t,” David Codrea, cofounder of COA, told WorldNetDaily. “If we’re successful, precedent will be set for the entire nation, or a Supreme Court case will be initiated, so it’s important for people from every state to know they have a stake in the outcome.”

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18 U.S.C. § 242 Denial of Rights Under Color of Law.

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On October 16, 2001 Ashcroft’s legal opinion was confirmed by the Fifth Circuit Court of Appeals ruling in United States vs. Emerson9 that the Second Amendment’s right to keep and bear arms is an individual right. The Court’s jurisdiction covers Texas, Louisiana, and Mississippi. The Emerson case has been appealed to the U.S. Supreme Court and the Court may affirm the Second Amendment is an individual right. The court held:

The Meaning of “Bear Arms” We conclude that the phrase “bear arms” refers generally to the carrying or wearing of arms. It is certainly proper to use the phrase in reference to the carrying or wearing of arms by a soldier or militiaman; thus, the context in which “bear arms” appears may indicate that it refers to a military situation, e.g. the conscientious objector clauses cited by amici supporting the government. However, amici's argument that “bear arms" was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected. The appearance of “bear Arms” in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee, “the people,” and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia. Finally, our view of “bear arms” as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911, 1921 (1998); viz: Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment (“keep and bear Arms”) (emphasis added) and Black's Law Dictionary, at 214, indicate: “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person. So. Where do we go from here?

Pointing The Way! Congress has the power to protect the citizen in the exercise of rights conferred by the Constitution. Ex parte Yarbrough, Ga. 1884, 4 S.Ct. 152, 110 U.S. 651, 28 L.Ed. 274. See also, Logan v. U.S., Tex. 1892, 12 S.Ct. 617, 144 U.S. 263, 36 L.Ed. 429; Baldwin v. Franks, Cal. 1887, 7 S. Ct. 656, 120 U.S. 678, 30 L.Ed. 766; U.S. v. Waddell, Ark. 1884, 5 S.Ct. 35, 11 U.S. 76, 28 L.Ed. 673; U.S. v. Lackey, D.C. Ky, 1900, 99 F. 952, reversed on other grounds 107 F. 114, 53 L.R.A. 660, certiorari denied 21 S.Ct. 925, 181 U.S. 621, 45 L.Ed. 1032. Congress has power by appropriate direct legislation to guard against the invasion of and protect a citizen’s fundamental rights, whether those rights be threatened or ignored by unfriendly or insufficient state legislation, by state judicial construction, or by state executive inaction, U.S. v. Hall, C.C.Ala. 1871, 3 Chicago Leg.N. 260; 26 Fed.Cas.No. 15,282. The above points of law and legal opinion point to the restoration of national open-carry handgun as both a constitutional norm and a social norm. Brannon P. Denning, in his law review Gun Shy: the Second Amendment as an “Underenforced Constitutional Norm”, (21 Harv. J.L. & Pub. Pol’y 719, Summer 1998) discusses Lawrence Gene Sager’s Fair Measure: The Legal Status of Underenforced Constitutional Norms,(91 Harv. L. Rev. 1212 (1978)). Denning’s introduction says: Twenty years ago, Professor Lawrence Sager wrote an influential article addressing the legal status of constitutional provisions that are not given the full range of interpretation by the Supreme Court,

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www .ca5.usc ourts.gov /opinions/p ub/99/9 9-103 31-cr0.h tm

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primarily due to what Sager termed “institutional” concerns. Sager was trying to combat the “modern convention” that treated “the legal scope of a constitutional norm as inevitably coterminous with the scope of its federal judicial enforcement.” Professor Sager argued that such norms were “valid to their conceptual limits,” and that other actors in our constitutional scheme, like Congress and the President, also had a responsibility to ensure that those norms were enforced. . . . Sager contended that the adoption of his analysis would result in “the perception that government officials have a legal obligation to obey an underenforced constitutional norm 10 which extends beyond its interpretation by the federal judiciary to the full dimensions of the concept which the norm embodies.” Officials would then be encouraged to “fashion their own conceptions of these norms and measure their conduct by reference to these conceptions.” “At a minimum,” for Sager, this would mean officials would have an obligation to use their “best efforts’ to avoid unconstitutional conduct.” Sager’s thesis envisioned a positive role for the courts, including the Supreme Court, and entailed only minimal limitations on the power of judicial review. In attempting to enforce constitutional norms fully, if Congress passed a law which trammeled other constitutional values, courts would be justified in overturning the offending measure. Similarly, should Congress read a constitutional norm broader than has the Supreme Court, and the more limited interpretation is “firmly rooted in analytical rather than institutional perceptions,” judicial intervention would be warranted as well. Sager cites as examples of warranted intervention when the norm is “fully enforced by the Court” and when the enactment “cannot be justified by any analytically defensible conception of the relevant constitutional concept.” But, Sager argued, when refusing to enforce a constitutional norm on institutional, as opposed to analytical grounds, the courts should refrain from commenting upon the scope of such provision. Sager also endorsed state courts’ enforcement of underenforced constitutional norms, and criticized the Supreme Court for overturning cases in which state courts have broadly enforced provisions of the Constitution. If an underenforced constitutional norm is valid to its conceptual boundaries, the decision of the state court can be understood as the enforcement of the unenforced margin of a constitutional norm, that is, as the assumption of an important constitutional role that the federal courts perceive themselves constrained to avoid because of institutional concerns. On this basis, state court decisions that voluntarily extend the application of such norms should be left intact. Sager continued, “Unless competing constitutional concerns are at stake, there would seem to be no occasion for an abiding federal judicial role in policing state courts against overly generous interpretations of federal constitutional values.” Sager concluded that “we should not allow the prominence of the federal judiciary’s part in the enforcement of the Constitution to obscure the importance of other governmental officials and bodies in that process.” He characterized the federal courts as “relatively powerless” against the “scattered erosion” of our “constitutional values.” His vision, ultimately, was one of “shared responsibility for the safeguarding of constitutional values.” To that end, Professor Sager “encouraged close scholarly and judicial attention to the principles which govern or ought to govern the collaboration.” In Eric M. Axler’s, The Power of the Preamble and the Ninth Amendment: the Restoration of the People’s Unenumerated Rights, (24 Seton Hall Legis. J. 431 (2000)): Because the Ninth Amendment seemingly refers to unenumerated rights, commentators have urged courts to base their findings of rights on that “forgotten” amendment, rather than try to stretch the meaning of the other amendments to fit the desired right. Courts, by contrast, have been strikingly reluctant to fully embrace the Ninth Amendment as a source of protected rights. The words of the Ninth Amendment, however, are quite simple: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Supreme Court’s

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National open-carry handgun (sidearm) is a constitutional norm.

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interpretation of this amendment has varied enormously throughout its history. While the Amendment began as an important condition to the states’ ratification of the Constitution, it subsequently went unnoticed by the Supreme Court for 174 years. . . . Although only sparingly utilized by courts to find particular rights since the enactment of the Bill of Rights in 1791, the Ninth Amendment expressly secures, and encompasses, all of the rights alluded to by the framers and ratifiers of the Constitution. Considering that the framers intended to give effect to every constitutional clause, any argument suggesting that the Ninth Amendment was merely an observation, and nothing else, appears to run contrary to established jurisprudence. Furthermore, the rights embodied in the Ninth Amendment should be recognized because of the manner in which the states ratified the Constitution. That is, the ratification process was similar to a negotiation to enter into a contract, with the promise of a bill of rights serving as the parties’ consideration. The proponents of a bill of rights, as a guarantee of the rights and liberties of the people, would not have been content with only the abbreviated list of rights included in the first eight amendments. Indeed, only a selected few of the many rights that the state ratification conventions proposed were actually incorporated into the bill of rights. So as to “compensate” the critics of the Constitution, without whom the Constitution would likely have not been ratified, the framers of the bill of rights inserted the Ninth Amendment.

To discover the spirit of the Constitution, it is of the first importance to attend to the principal ends and designs it has in view. These are expressed in the following words, viz, “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution.”11 If the end of the government is to be learned from these words, which are clearly designed to declare it, it is obvious it has in view every object which is embraced by any government. The preservation of internal peace — the due administration of justice — and to provide for the defence of the community, seems to include all the objects of government; but if they do not, they are certainly comprehended in the words, “to provide for the general welfare.”12

Mark C. Niles’s Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy Rights, (48 UCLA L. Rev. 85, October, 2000, p. 123-135) he: argues that the Ninth Amendment, now a subject of significant legal scholarship, should also play a meaningful role in constitutional adjudication. It demonstrates that the development of an active Ninth Amendment jurisprudence is not only possible as a theoretical matter but is essential to the development of an effective and responsive body of law governing issues of privacy and personal autonomy. Ninth Amendment adjudication would fill a critical void in our personal autonomy

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Brutus, E ssay XII, in The Anti-Federalist Papers and the Constitutional Convention Debates, 300 (Ralph Ketcham ed., 198 6). Altho ugh “B rutus” (pseudon ym of, it is be lieved, Jud ge Robe rt Yates o f New Y ork) wrote this reflection a s part of an essay to urge those at the ratification conventions to reject the proposed Constitution, the quotation neverthe less is a goo d descriptio n of the va lue given to the Prea mble b y the fram ers. See also The Library of Am erica, The Debate on the Con stitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle ov er Ratification. P art Two: J anuary to Augu st 1788 . “Brutus” XII, On the Power of the Supre me C ourt: Noth ing Can Stand B efore It. p. 173 12

The Libra ry of Am erica, The D ebate o n the C onstitutio n: Fed eralist an d Antife deralis t Speeches, Articles, and Letters D uring the Stru ggle over Ra tification. Part Tw o: Janua ry to Aug ust 178 8. “Brutus” XII, On the Power of the Sup reme C ourt: Noth ing Can Stand B efore It. p. 173

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jurisprudence by providing courts with a more appropriate and effective means of resolving some of the major individual rights disputes of this century.” A Ninth Amendment Adjudicative Mechanism The interpretation of the Ninth Amendment detailed above suggests that a specific kind of mechanism would be most effective for adjudicating Ninth Amendment claims. Like claims alleging violations of the Fourteenth Amendment’s Equal Protection Clause, the central focus of Ninth Amendment adjudication should be the impact of the underlying government action and the motivation for it. Just as in equal protection analysis, government action based on an invalid motive - in the case of the Ninth Amendment, any motive that is not based on protecting or enhancing the public welfare should be struck down. Pursuant to Ninth Amendment adjudication, the question would not be whether a distinction made by a governmental action was based on a classification considered inherently suspect because of the unavoidable inference of unconstitutional racial or gender animus or prejudice that the classification suggests. Rather, in Ninth Amendment adjudication, the question will be whether government action that places a significant burden on the expression of personal autonomy or freedom is motivated by an unconstitutional interest in controlling private action or private choices. Like classifications based on race, government action that imposes substantial restrictions on private activities raises the presumption that the action is motivated not by a legitimate public interest, but by an illegitimate objective to regulate activity not within the proper scope of governmental power. Accordingly, an appropriate mechanism for Ninth Amendment adjudication would resemble that used to resolve equal protection claims. First, the court would make an initial determination at a postpleading/prediscovery motion stage as to whether the government action giving rise to the challenge is the kind of activity that the Ninth Amendment protects. If the court concludes that it is not, the case would be dismissed at that stage. If, however, the court concludes restriction of the activity would impose on the personal autonomy of the individual or group of individuals involved, the case would move on to the second stage, during which the reviewing court would subject the governmental action to a heightened scrutiny similar to that applied in equal protection cases. To survive this review, governmental action that restricts personal autonomy, like an action that classifies on the basis of gender, must serve an important and legitimate government interest, and must be substantially related to achievement of the legitimate objective. This mechanism arises from the core principle of the Ninth Amendment that not all government action is legitimate, and that when the government seeks to restrict the expression of personal freedom, absent an appropriate justification based on the protection of public welfare, it is illegitimate and unconstitutional. Pursuant to this proposed mechanism, reviewing courts will be obliged to determine exactly when government action that seeks to regulate private activity is legitimate. This analysis involves a determination of how private that activity really is, and it must address both the extent of the government regulation involved and the motivation for the action. The more private the activity involved, the less justified the government is in regulating it. To justify regulation, the government must show that there are sufficient public consequences of the activity that justify government regulation. It is important to note once again that the references to private and public that are relevant to this Ninth Amendment analysis conceive of private acts as those that pose no threat of harm to other individuals or to the public welfare, while public acts are those that pose a threat to either or both. This simplistic delineation of the public/private distinction is chosen, in part, because it is mandated by the understanding of the nature of personal liberty and legitimate government action in the Lockean framework. The concept of rights retained by the people upon which this Ninth Amendment interpretation is based flows from Locke’s notion that legitimate government action focused on only those aspects of individual action that posed a threat to others or the community as a whole. Those private acts that did not pose such a threat were not the subject of legitimate government regulation. So, to the extent that the terms public and private are used in the discussion of the Ninth Amendment adjudicative mechanism in the remainder of this Article, they should be

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viewed as conveying the distinction between acts that pose a potential public threat and acts that do not. The question of the legitimacy of government regulation pursuant to the Ninth Amendment is the same as the question Professor Kirstie McClure conceptualized as central to the determination of legitimacy in Locke’s political theory. What a Ninth Amendment adjudication must do is “distinguish between arbitrary interferences with the[] propriety [of individual citizens on the one hand] and reasonable regulation for the public good [on the other].” When a challenged government regulation is found not to be a reasonable regulation for the public good, but merely an arbitrary interference with individual autonomy, it will be invalid under the Ninth Amendment. A. Stage One: Gatekeeping At the initial stage of a claim based on the Ninth Amendment, instead of asserting that a federal or state law or government action violates a fundamental right protected by the Fifth or Fourteenth Amendment’s due process clauses, an individual would file a complaint alleging that the government action constitutes an illegitimate intrusion into her personal freedom by restricting or precluding an essentially private activity or interfering with a private choice. The complaint would identify the specific activity or activities involved and the way in which the government action either restricted or precluded them. The complaint would not argue that the plaintiff had a specific positive right to engage in the activities in question. It would allege instead that regardless of the importance or fundamentality of the activities, the activities were private, or involved the expression of the personal autonomy of the plaintiff, and that they were therefore protected from government regulation by the Ninth Amendment. In response to the plaintiff’s complaint, the government defendant could seek to terminate the case by filing a motion to dismiss the claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (or a state court analog), arguing that even if the factual allegations made by the plaintiff were true, the claim would still fail to state a claim upon which relief could be granted. To make this argument, the government would contend that the activities identified in the complaint were not the kinds of activities that are protected by the Ninth Amendment because they are essentially public rather than essentially private. The reviewing court, either sua sponte or in response to a government motion, would make the initial determination, as a matter of law, as to whether the relevant activity was sufficiently private (or non-publicly threatening) to fall within the protection of the Ninth Amendment. This type of determination is appropriate for a court at the motion to dismiss stage. The dismissal option would allow the court to determine whether the plaintiff had identified a plausible instance of illegitimate government intervention before extensive resources were expended balancing the extent of the harm suffered against the government interests served. Under this proposed adjudication mechanism, if the reviewing court concludes that the activity is not substantially private - that its character is primarily public in nature the court would properly dismiss the case on the grounds that the plaintiff had failed to state a claim upon which relief could be granted under law. This early stage determination would have the benefit of quickly disposing of frivolous assertions of Ninth Amendment rights, of identifying valid constitutional claims that simply are not Ninth Amendment claims, and saving the courts and the government the time and expense of excessive discovery and protracted litigation. Only if the reviewing court concluded that the activity involved was substantially private in character would the case move on to the next stage - the application of a heightened level of scrutiny to the government’s action and motivations. At the initial stage, the court would not provide an in depth evaluation of the extent of the public consequences of the action. It would merely determine whether the activity involved in the claim was basically private or basically public. A judicial determination of whether a certain activity was public or private could pose serious challenges for courts just as it does for philosophers and other theorists. But this unavoidable difficulty does not justify rejection of this adjudicative model. Indeed, such judicial determinations are commonplace in the evaluation of many claims. And, given the character of the privacy right protected

10

by the Ninth Amendment, the overriding question would be a comparatively simple one: Does the action pose a threat of harm to another individual or to the public welfare? As the Supreme Court has demonstrated, it is capable of addressing the issue of the potential public impact of an arguably private activity. In Stanley v. Georgia (394 U.S. 557 (1969)) for example, the Supreme Court reviewed a challenge to a Georgia criminal prosecution for the possession of obscene materials. The challenging party argued that the state obscenity law “insofar as it punishes mere private possession of obscene matter, violates the First Amendment.” 13 The Court agreed, holding that “the mere private possession of obscene matter cannot constitutionally be made a crime.” 14 Although the lower court had relied on the Supreme Court’s decision in Roth v. United States (354 U.S. 476 (1957)) which held that obscenity was not protected by the First Amendment, the Court distinguished this case by noting that Roth dealt with the distribution of “objectionable material or with some form of public distribution or dissemination.” In its opinion, the Court addressed the extent of the right to privacy that citizens enjoyed in their homes. After noting the importance of receiving information, regardless of its “social worth,” the Court noted the right “takes on an added dimension” in a case involving protection for the mere possession of obscene material: “For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.” The Court based its holding on its understanding of how the Constitution limits the authority of government to invade the privacy of its citizens and the consequent rights that citizens enjoy in order to protect this privacy. . . . In Stanley, the Court identified two crucial aspects of a reasoned definition of privacy. First, and most obvious, the Court held that actions that occur in an individual’s home and that do not involve contact with the rest of the community are private and deserve a different treatment than conduct that occurs outside the home. But, second, and perhaps more important, particularly in regard to Ninth Amendment adjudication, the Court notes that the real invasion that resulted from the government’s action in Stanley - the real violation of the First Amendment and “our whole constitutional heritage” - was the attempt by the state to invade the mind of one of its citizens. Worse even than the invasion of the appellant’s home in this case, according to the Court, was the attempt to legislate his personal preferences, beliefs, and morality. The decision stands for the proposition that the sphere of privacy that legitimate government action cannot invade includes both one’s home and one’s personal beliefs and values. As strong as the Court’s holding was in Stanley that the government action constituted an undue invasion of privacy, the majority was not unmindful of the types of complications that arise when an activity in our complex and interconnected society is identified as private. In response to arguments from Georgia that “exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence,” the Court noted that there is “little empirical basis for” such an assertion, but noted that even if such a connection could be drawn, it would not justify the extent of the intrusion involved in Stanley, particularly in light of other mechanisms that serve to discourage the expression of personal beliefs in a manner that will threaten the society as a whole. We believe that in the context of private consumption of ideas and information we should adhere to the view that “among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law....” Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.

13

14

Stanley v. Georgia (394 U.S. 557 (1969)) at 559 Id.

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Just as in Stanley, the identification of what is sufficiently private to garner Ninth Amendment protection will be complicated by arguments concerning the potential public impact of essentially private conduct. One of the key aspects of this proposed Ninth Amendment adjudicative mechanism is that it takes these possible arguments seriously and factors them into its analysis. The point of this mechanism is not to identify some actions as purely private and mandate that courts protect them from any kind of state regulation, but rather to identify those activities that are substantially or primarily private and to require a government that seeks to regulate such activities to justify regulation based on the public impact of the action. The Stanley Court’s analysis of the private and public sphere, and of the illegitimacy of government action that invades the former, demonstrates at least some of the activities that would be appropriately considered to be essentially private by a court reviewing a Ninth Amendment claim. Actions involving only one person that occur in the privacy of one’s residence would be considered private under this analysis, partially because of the location of the action and partially because of the complete absence of reasonable threat of harm to another. Although slightly more controversial, it can be demonstrated that actions involving apparently consenting adults within a private residence would also be considered private, again both because of location and the lack of threat of some unwanted, and consequently harmful, intrusion. And the act of forming and expressing one’s personal preferences and beliefs - the defining characteristic of personal autonomy - would also be properly considered private in nature. The discussion of privacy in Stanley provides two important keys to the development of an effective Ninth Amendment jurisprudence: (1) It demonstrates that courts can (and do) make distinctions between public and private activity, and (2) it provides a basic indication of how a reasoned distinction between the public and the private can be made. Though Stanley and similar cases are insufficient to conclusively resolve the difficulties in determining at exactly what point the public/private line should be drawn in every case, this realization is not fatal to the development of this jurisprudence. The point of the Ninth Amendment mechanism is not to mandate resolutions of disputes over the legitimacy of government regulation of private acts, but rather to place those disputes at the forefront of adjudication and to tip the current balance inherent in judicial evaluation of personal autonomy claims away from the governmental entities and in favor of individuals. As the remainder of this Article demonstrates, the difficulties inherent in identifying which actions can be reasonably considered to be primarily public will rest with the governmental entity as it seeks to justify its regulation of the activity in the second stage of the Ninth Amendment adjudication mechanism. Pursuant to this mechanism, the government will only be allowed to regulate activity when it can provide a convincing demonstration that the activity has some kind of significant impact on the public welfare. If the government cannot make such a showing, its regulation will be properly invalidated as violating the Ninth Amendment. B. Stage Two: Heightened Scrutiny for Privacy-Invasive Government Action Pursuant to the second stage of this proposed mechanism, if a court concluded that the regulated act is essentially private, a government could not successfully respond to the plaintiff’s claim by noting that there is a public consequence, or consequences, arising from the activity in question. This argument would be insufficient, on its own, to justify the regulation. If the government seeks to legitimately regulate the activity in question, it must demonstrate that the public impact of the act is substantial enough, and the public interest in regulating it compelling enough, to justify the extent of the privacy invasion involved. In the second stage of this Ninth Amendment analysis, the government would be obliged to demonstrate why its regulation of the activity is legitimate. To do this it must identify the public interest that is served by the regulation or preclusion, and show that the specific regulation is substantially related to that public interest. Similar to the “fit” analysis applied by courts in cases involving classifications based on sex under the Equal Protection Clause, the government would be required to demonstrate that the interest it seeks to protect is a valid interest - in this case a public welfare interest - and that the challenged regulation is narrowly tailored to achieve that permissible goal.

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This Ninth Amendment fit analysis will treat as inherently suspect any governmental action that invades the privacy of individuals. The mere fact that the government has instituted a regulation of private activity supports the assumption that the government’s motivation is nonpublic in nature, and therefore invalid.15 Consequently, as in the case of suspect racial and gender classification, the government would be required to show that the means it has chosen to meet its express objective is the one that poses the least reasonable threat to the constitutional rights of the citizens involved and is reasonably related to a valid government interest. This mechanism serves to protect the personal autonomy of citizens, and to identify circumstances in which the professed motivation for a regulation is actually a pretense obscuring some kind of unconstitutional purpose.16 Under this analysis, the government’s proffered justification for its action could fail on two separate grounds. First, if the interest that the government seeks to protect is insufficiently public, it will not be justified in regulating private activity based on that interest. Second, if there is a legitimate government interest that can be identified, but the regulation in question is not substantially related to promoting that interest, the government would be obliged to find some other, less privacy-intrusive, manner to promote that objective. This fit analysis will require that the government regulate activities only in appropriate circumstances, and seeks to assure that the specific regulations actually arise out of, and reasonably serve, appropriate governmental interests. What is specifically precluded by this part of the mechanism are any governmental interests that do not serve to protect the public good. Pursuant to this analysis, the government cannot impose a community-defined code of morality regulating the private lives of its citizens unless the regulation ostensibly protects the public welfare.17 As shown above, the rights referred to in 15

John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 34 (1980) at 145-46. In discussing the role that “suspect classification” analysis plays in uncovering the real motiva tion behin d legislative a ction, Ely notes tha t: The goal th e class ification in issue is likely to fit mos t closely , obvio usly, is the go al the le gislator s actu ally ha d in mind. If it can be directly identified and is one that is unconstitutio nal, al l well a nd go od: the classific ation is uncon stitutional. But even if such a confident demonstration of motivation proves impossible, a classification that in fact was uncon stitutionally m otivated w ill nonethe less - than ks to the indire ct pressure exerted by the suspect-classification doctrine - find itself in serious constitutional difficulty....The “special scrutiny” that is afforded suspect classifications...insists that the classification in issue fit the goal invoked in its defense more closely than any alternative classification would. There is only one goal the classifica tion is likely to fit tha t closely, ho wever, and that is the goal the legislators actually had in mind. If that goal cannot be invoked because it is uncon stitutional, the classification will fall. Thus, functionally, special scrutiny, in particular its demand for an essentially perfect fit, turns out to be a way of “flushing out” unconstitutional motivation, one that lacks the proof problem s of a m ore direct inq uiry.... 16

Id. at 138. The reason that the fit analysis is applied to equal protection determinations is that otherwise ostensibly permissible classifications made by legislatures are appropriately invalidated if the motivation for the classification is impermissible - “that the very same governmental action can be constitutional or unconstitutional depending on why it was undertaken.” Id. at 137; see also Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960) (“”Acts generally lawful may become unlawful when done to accomplish an unlawful end....’” (quoting United States v. Reading Co., 226 U.S. 324, 357 (1912))). As Ely noted in 1980, this point is by no means uncon troversial, and he also acknowledged the difficulty of finding a single motivation for a legislative act. But he argues th at: The considerations that make motivation relevant argue not for the discovery of the “sole” motivation (is there ever just one?) or even the “dominant” motivation (whatever that might mean), but rather for asking whether an unconstitutional motivation appears materially to have influenced the choice: if one did, the procedure was illegitimate - “ due pro cess of law makin g” was d enied - an d its produ ct should be invalida ted. 17

Peter M. C icchino, Reaso n and the Ru le of Law: Should Bare Assertions of “Public Morality” Qua lify as Legitim ate Go vernm ent Inte rests for the Purposes of Equal Protection Review?, 87 Geo. L.J. 139, 173 (1998)

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the Ninth Amendment as being retained by the people are rights to personal self-determination and autonomy. The central core of these retained rights, what Locke referred to as the right to make “private judgment,” is the right to govern one’s life without the imposition of an external, and necessarily alien, belief structure, at least to the extent that these personal moral choices pose no threat to others. Even though it cannot be disputed (at least not under the constitutional or Lockean frameworks) that governments may impose a concept of public morality on its citizens in the course of its regulation of public activity, governments have no legitimate authority to impose a majority-defined concept of personal or private morality on individuals in a way that substantially impacts their private lives. Ninth Amendment adjudication would invalidate any such governmental attempt. In 1946 Senator Claude Pepper of Florida, entered into the Extension of Remarks of the Congressional Record, The Public Responsibilities of an Educated Citizen, a speech delivered by Angus McKenzie Laird, associate professor of political science at the University of Florida, to the graduating class of the summer session of the University of Florida on August 27, 1943.18 The following excerpts from this speech are still appropriate today, and especially so to this application: Twenty-three centuries ago, the philosopher Plato, an unfriendly critic, held that in a democracy the people did not recognize that their duties were equal to their rights. By insistence upon their rights, and by neglecting their duties, they paved the way for the overthrow of democracy and the establishment of tyranny. One need not accept Plato’s views as to the inevitability of this process from democracy to tyranny, in order to agree that we must meet our duties and responsibilities as well as enjoy our rights and liberties if our democratic society is to survive. This great truth has been recognized in a number of constitutions of national states. The French Constitution of 1793 not only contained the famous “Declaration of the rights of Man,” but had a list of the duties of man as well. The most recent Constitution of the Soviet Union not only has a bill of rights but has a bill of duties as well. Our constitutional forefathers were fully cognizant of the truth that every right implied a duty. However, our Constitution was based upon somewhat different principles from those of the French Constitution of 1793 and the Russian Constitution of 1935. Our Bill of Rights was added, not in order that the people might know their rights, but that the Government might not infringe upon them. It was assumed that the people would know their duties as they knew their rights. Yet, I fear this has not always been realized, and unfortunately “duty” appears almost to have become an outworn term. One should not be surprised if in the next edition of Webster, he finds after the definition of the word “archaic.” In almost all the textbooks on civics and political science, and in all the texts in social science without exception, which you have used in high school and college, you will find at least one chapter on our rights, but never one on our duties. Some of our citizens have been so impressed with their rights in recent years that they are having difficulty—at the country’s expense—in recognizing that they also have duties. . . . an educated citizen has the responsibility to obey and respect the law. I do not mean that you should take a “pollyanna” view of the law, that all laws are good and fair and just and [blindly?] should obey all of them at all times and under all circumstances. Some laws are unfair, some are unwise,

at 142. While it is entirely appropriate, and indeed unavoidable, that legitimate government interests reflect judgm ents about what is good for the political commu nity and for individual citizens, for equal protection analysis, the only value judgments that qua lify as legitimate government interests are those that are o bservably connected to the public welfare. A bare assertion of public morality, divorced from any empirical effect on the public welfare, canno t constitute a legitimate governm ent interest. 18

Senate, Senator Claude Pepper of Florida , The Public Responsibilities of an Educated Citizen, Congressional Record, Extension of Remarks, 79th Congre ss, 2 nd Sessio n (Au gust 1 , 194 6, legis lative day of Monday, July 29), pages A4750-A4753

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some are impractical; others are in conflict, and still others, while considered fair and equitable at one time, have become archaic and inapplicable to modern conditions. The professor closed his speech with: I dare say that the proudest title a person may have in our day is that of an American citizen. Some of you will bear that title to foreign lands; others of you will remain at home. Let us remember that the prestige of this title is not based upon military strength, though that is great; it will be based upon the example we have furnished to the world of a 130,000,000 people, representing all the races of mankind, where all share more equitably in the opportunities and responsibilities of a great society than men have ever shared before. It was of this greatness and of this day that Walt Whitman was thinking when he wrote about a century ago: Sail, sail thy best, ship of Democracy Of value is thy freight, ‘tis not the Present only, The Past is also stored in thee. Thou holdest not the venture of thyself alone, not of the Western Continent alone, With thee Time voyages in trust, the antecedent nations sink or swim with thee. Theirs, theirs as much as thine, the destination-port triumphant. (“Thou Mother with Thy Equal Brood”—Leaves of Grass.) As a American merchant seaman Walt Whitman’s poem above strikes resonant with me. If only Mr. Whitman had used Republic instead of Democracy his poem would have rang faithfully truer for freedom. When a nation endeavors to disarm its citizens through a campaign of gun control laws, as in the United Kingdom and Australia examples, domestic tranquility is traumatized, the common defense is compromised, the general welfare is degraded, and liberty is no longer secured. Allowing United States citizens to exercise their Second Amendment rights to the full conceptual limits19 of national open-carry of a handgun, as we once had, will have the attributes of establishing Justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty to ourselves and our posterity (words of the Preamble to the United States Constitution).20 The Second Amendment is a function of the Preamble. There is also a preamble to the Bill of Rights!21 The first paragraph reads: The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The Social Norms View of the Second Amendment Will life in America really be one of anarchy as gun control advocates claim if law-abiding citizens had their Second Amendment rights at full conceptual limits restored? Or, will it be life as

19

See Denn ing, Bra nnon P ., Gun Shy: the Second Amendment as an “Underenforced Constitutional Norm, 21 Harv.J.L. & Pub. Pol’y 719, (Summer 19 98). Discusses Lawrence G ene Sager’s Fair Measure: The Legal Status of Underenforced Consitutional Norms, 91 Ha rv. L. Rev. 1 212 (1 978). 20

See Ax ler’s, Eric M., The Power of the Pream ble and the Ninth Amend ment: the Restoration of the People’s Unenum erated Rights, 24 Seton Hall Legis. J. 431 (2000) 21

National Archives and Records Administration; www.nara.gov/exhall/charters/billrights/preamble.html

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normal, governed by The Limits of Social Norms22 with reduced rates of crime and greater rates of social civilities, as in the proverbial slogan, an armed society is a polite society? Will the government revise tort and liability laws favoring the full conceptual limit of Second Amendment rights as a social norm? Excerpts From

The Limits of Social Norms 23 74 Chicago-Kent L. Rev. 1537 (2000) Jeffrey J. Rachlinski 24 No society can function if it cannot constrain the self-serving behavior of its members. Societies that cannot control socially destructive behavior collapse into dysfunction; they become dangerously crime-ridden,25 as in some of America’s inner cities, or completely anarchic, as in parts of the Balkans and central Africa. Clear rules enforced by legal sanctions deter a great deal of socially destructive conduct, but social norms enforced by informal sanctions might create even more powerful constraints. If so, then gaining control over dysfunctional societies might depend more upon using or manipulating social norms than upon enforcing the law. Decades of research conducted by social psychologists on social norms, however, suggests three important obstacles to the use of social norms: First, antisocial norms, once established, are hard to dislodge;26 second, even if people adhere to positive social norms, determining when they are triggered is difficult; third, subtle aspects of situations can induce antisocial conduct, seemingly even against social norms.27 Here I supplant the definition of social norm to mean the acceptance of an openly armed society in accordance with the Second Amendment being a positive social norm, and the definition of antisocial norm to mean an anti-gun society opposing the Second Amendment. Most legal scholarship addressing the control of antisocial behavior addresses formal sanctions rather than social norms. This is not surprising; formal sanctions are more familiar to lawyers and punishing undesirable antisocial conduct is the most straightforward means of maintaining social order. Formal sanctions almost certainly provide a critical degree of control over antisocial conduct, but they are costly, both to society and to the individual being punished. Incarceration, in particular, can produce unintended costs to individuals, especially in communities in which the rate of incarceration is high. Partly in response to the staggering costs of incarceration, some legal scholars argue that informal social norms provide a better means of controlling antisocial conduct. This observation builds upon a growing body of legal scholarship concerning social norms. This new “law and social norms”

22

Rachlin ski, Jeffrey J., The Limits of Social Norms, Chicago-Kent L.Review, Vol 74:1537-1567; (2000)

23

Footnotes omitted.

24

Professor o f Law, C ornell Law Schoo l. Ph.D., Psychology, Stanford University, 1994 ; J.D., Stan ford University, 1993 ; B.A., The Johns Hopkins University, 1988; M.A., Psychology, The Johns Hopkins University, 1988. 25

United K ingdom and A ustralia serv e as pristine exam ples of w hen a n ation disa rms its citizen s with comp lete bans on firearms that nation soon becomes crime ridden. Proof that an armed society is a positive social norm. 26

The an ti-gun cultu re as a soc ial norm is anti-social in nature. It allows th e crimina l eleme nt of society free reign in criminal activity against the law-abiding as they are less likely to face an armed citizen. 27

The handgun, in reality, is a tool for self-defense. An inanimate object, it can do nothing under its own existence. The a nti-gun culture view th e han dgun as an anim ate ob ject ca pable of psyc holog ically ind ucin g anti-social beha vior in its owner to commit crimes with the handgun. Anti-social behavior becomes a social norm.

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scholarship adopts a more subtle approach to social behavior than identifying situations that should trigger formal rewards and sanctions. It accounts for the prominence of group membership and social approval as sources of rewards and punishments. This new field has developed several positive and normative implications of social norms. On the positive side, the scholarship asserts that groups develop and enforce norms of conduct apart from formal legal sanctions. Perhaps more significantly, this scholarship might hold valuable normative lessons for policymakers interested in reducing crime as an alternative to incarceration. The law and social norms scholarship identifies two ways in which reformers can take advantage of the power of social norms. First, changes in law can influence social norms. For example, passing a law against smoking in public places had a dramatic effect on smokers, not because of the formal penalty for public smoking (which is hardly ever imposed) but because it empowered nonsmokers to levy social sanctions on smokers. Changes in law might also inspire changes in preferences. Scholars refer to this as the “expressive” function of law. Second, subtle and inexpensive changes in a social setting can signal different social norms. . . .28 The interaction between law and social norms arguably identifies ways to reduce crime that are less expensive and more humane than traditional approaches. A change in law that does not need to be enforced, or is only minimally enforced, is not costly to society or to the individuals who are deterred from breaking the law by a new social taboo. . . . The social psychological research, in fact provides some systematic support for the theories proposed by the social norms scholars. Social psychologiests have conducted numerous empirical studies which support two basic tenets of the law and social norms scholars: (1) that groups develop and impose norms on their members, and (2) that the apparent behavior of others can alter the social meaning of a situation in ways that profoundly affect behavior. Social Norms Social norms operate independently from formal law. Laws commonly track social norms; murder, burglary, and many crimes are both illegal and socially inappropriate. Sometimes, however, social norms and law conflict. In such instances, norms frequently influence behavior more than the law. . . . An inconsistency between law and social norms makes enforcing formal laws against antisocial conduct difficult. Absent some power to manipulate social norms, these observations have only limited value for reformers. Identification of divergences between law and norms might indicate haw best to allocate an enforcement budget, but this is a relatively weak implication. Scholars have argued, however, that the law interacts with social norms to influence behavior in two productive ways: First, laws can direct or strengthen existing social norms; and second, social policies can change the social meaning of a behavior. Law has an expressive function that can motivate a change in social norms. Attaching a criminal penalty to conduct can inspire social condemnation. Criminalizing undesirable conduct to support a social norm con embolden people to levy informal sanctions against a violator and signal potential violators that their conduct will draw a severe social sanction. Ordinary citizens might begin to feel entitled to be free from the costs of undesirable condujct that violators inflict on them. Consequently, even in the absence of enforcement, the mere act of criminalizing conduct can reduce its prevalence. For example, as Robert Cooter has observed, even though laws against smoking in public are almost never enforced, compliance is widespread. Cooter suggests that labeling the behavior as a crime will heighten potential violators’ fear ofr social sanction, and might also encourage a real increase in social sanctions against violators.

28

An a rmed society in the U nited S tates w as on ce a so cial norm with its own informal rewards and punishments. Law can and m ust be changed to facilitate the restoration of this social norm and once restored, suppo rt it.

17

Along a similar line, laws and policies can take advantage of social norms to change the meaning of social behaviors in ways that discourage antisocial conduct. . . . Using the law to influence social norms raises the prospects of having a big effect at little cost. Creating a law against smoking in public and not enforcing it is practically a costless means of eliminating the problem of exposure to second-hand smoke. Reforms directed at changing social norms might also prove much more effective and have fewer unwanted side effects than enforcing formal penalties.

No amount of deceptive legal arguments attempting to prove the fallacious intent of gun control laws preventing the free exercise of armed self-defense will some how reduce crime. But, in reality such laws only increase murder rates and other violent crime rates. What will reverse the tide of gun control is Social Norms Marketing! Instead of the heretofore futile effort of the National Rifle Association, Gun Owners of America, Second Amendment Foundation, KeepAndBearArms.com, Jews for the Preservation of Firearms Owners, and other pro-Second Amendment groups lobbying Congress for the restoration of our gun rights, they “ought” to take the gun rights message that the Second Amendment is not only a constitutional norm but it is also a positive social norm to the people at large. They should pool their financial resources and take the Social Norms Marketing approach. They would ultimately still accomplish their goal as the public at large will then be standing in line at their Senators’ and Congressmen’s doors, sending letters, and emails for the restoration of their gun rights. An effective use of their cost-benefit analysis in anyone’s ledger. “Social norms marketing is an innovative way to educate people about the healthy behaviors practiced by a majority of the public for the purpose of improving overall health status.”— www.mostofus.org. The process of social norms marketing is based on social norms theory.29 I would rephrase that statement to read: “Social norms marketing is an innovative way to educate people about the healthy behaviors practiced by a majority of the public for the purpose of improving overall personal security status.” Social norms are people’s beliefs about the attitudes and behaviors that are normal, acceptable, or even expected in a particular social context. In many situations, people’s perception of these norms will greatly influence their behavior.30 When people misperceive the norms of their group — that is, when they inaccurately think an attitude or behavior is more (or less) common than is actually the case — they may chose to engage in behaviors that are in sync with those false norms.31 Such is the case with gun control. Misperceptions infect all of society, even the courts.

The Fifth Circuit Court of Appeals Blows the Whistle On Sister Courts’ Second Amendment Deceptions We conclude that [United States v.] Miller does not support the government’s32 collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller 29

www.unco.edu/stuact/modelprogram/Social%20Norms.html

30

www.edc.org/hec/socialnorms/ (last update: January 30, 2002)

31

Id.

32

Clinton/Reno era.

18

sheds light on the matter it cuts against the government’s position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect. However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment. Thus, Miller itself does not resolve that issue.. . . We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.” 33

A Nation of Lies Governed by Liars Leads to Deception and Corruption as a Social Norm This appears to be the case with society in the United States. The transition from a national unlicensed open-carry handgun representative of an honest society (the old social norm) to licensed concealed-carry, representative of a deceptive society (the current social norm), is an example of how a minority’s misperception of behavior in others (gun owners) has led to enactment of laws supporting this misperception. The misperception in this case is the Second Amendment’s right to keep and bear arms, that gun possession is a fretful danger to society. This misperception is based on a psychological fear of guns by the insecure. And what has occurred because of that fear is a transference of that fear from the insecure minority to all of society through legislation. Now that fear is in sync with all of society. The fear of guns has emerged as a social norm. Most lawful gun owners do not publicly defend their rights for fear of ridicule and harassment from society and from law enforcement. For the survival of the innocent this must change. A new social norm, or more accurately, reinstating an old social norm is demanded.

Social Norms Marketing Social norms marketing is currently, and has been for recent years, used to address binge drinking by college students. Health & Human Development Programs, funded by the U.S. Department of Health and Human Services, Public Health Service, and the National Institutes of Health, are: . . .undertaking a five-year evaluation of the effectiveness of a campaign called ‘Just the Facts’ aimed at reducing high risk, binge drinking by college students. This type of prevention program — commonly known as a ‘social norms marketing campaign’ — tries to change students’ perceptions of campus norms. ‘Just the Facts’ has been pilot-tested on several campuses but this will be the first time it has been scientifically evaluated.34 One method frequently used to correct misperceptions is “social marketing,” a method of using mass marketing techniques to disseminate information. When colleges conduct marketing campaigns to correct misperceptions of social norms, these campaigns are referred to as “social norms marketing” campaigns.35 For many years, health and safety professionals have used the threat of harm and related consequences in an effort to reduce high-risk behaviors such as high-risk drinking, and impaired driving practices. This strategy has had a limited impact on harmful behavior. . . . Social Norms Marketing [is] one of the fastest growing and most effective methods for reducing high-risk behaviors

33

United States v. Emerson, Fifth Circuit Court of Appeals, No. 99-10331

34

http://notes.edc.org/HHD/products.nsf/projects/01-7365

35

Id.

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and promoting positive social change. Currently, the Social Norms Marketing approach is being adopted by community coalitions to reduce high school alcohol and tobacco use, by states to promote traffic safety and by colleges to address high risk alcohol use, [binge drinking,] coercive behaviors and other health issues.36 Social norms marketing is the application of marketing ideas to society in order to change or modify behaviors. In The Social Norms Approach, Alan D. Berkowitz states that the social norms theory can also be extended to situations in which individuals refrain from confronting the problem behavior of others because they believe the behavior is accepted by their peer group.37 Social norms theory assumes that much of our behavior is influenced by how members of our social groups behave, and that our beliefs about what others do are often incorrect.38 The social norms approach was first suggested by H. Wesley Perkins and [Alan D. Berkowitz]39 in an analysis of student drinking behavior. In this study we determined that students regularly overestimated the extent to which their peers were supportive of permissive drinking behaviors, and found that this overestimation predicted how much individuals drank. We recommended that prevention efforts focus on providing students with accurate information on peer drinking attitudes and behavior as a means of promoting non-use and less risk. This represented a radical departure from traditional intervention strategies that focus on abuse and on identification, intervention and treatment strategies for abusers. Traditional approaches that focus solely on the problems of alcohol and other drug use and its negative consequences draw attention to extreme behavior and foster the misperception that campus drinking is more excessive than is actually the case. In contrast, interventions based on social norms theory focus on the healthy attitudes and behavior of the majority and use information about healthy norms to guide interventions with abusers.40 The prevalence of alcohol-related misperceptions has been confirmed in over thirty published studies. Misperceptions are held by all members of campus communities, including undergraduate and graduate students, faculty and staff, students and student leaders, and have been documented in statewide sample of young adults both in college and not in college, and among middle and highschool students.41 Misperceptions have been documented for groups such as fraternity members, and athletes, and have been found to differ by gender, with women usually misperceiving more than men.42 Making a parallel extrapolation of the above account, misperceptions are similarly made regarding firearms and the Second Amendment. 36

Virginia Depa rtment o f Alcoho lic Bevera ge Con trol, Social Norms Marketing Training 2001, December 4-5, 2001, Sheraton Richm ond West Hotel, Richmond, Virginia, www.abc.state.va.us/Education/socialnorm01/ sn2001.htm. 37

www .sa.ua.ed u/wrc/soc ial_norm s.htm

38

Perkins, H W an d Alan D. Berk owitz, Perceiving the Community Norm s of Alcohol Use Among Students: Some Research Implications for Campus Alcohol Education Programming. International Journal of the Addictions, 21(9/10):961-976. This is the original study providing data for student misperceptions of attitudes towards alcohol, along with a discussion of the effects of these pisperceptions. 39

Id.

40

Berkow itz, Alan D ., The Social Norms Approach: Theory, Research and Annota ted Bibliogr aphy, June 2000, revised August 2001. In “Type of Misperceptions” section. 41

Ib. In “Studies Documenting Misperceptions” section.

42

Ib.

20

Assumptions of Social Norms Theory

43

As noted, social norms theory predicts that persons behave or inhibit behavior in an attempt to conform to a perceived norm. This phenomenon of “pluralistic ignorance” can cause an individual to act in ways that are inconsistent with her or his true beliefs and values (Miller & McFarland, 1991). In other words, gun owners (and non-gun owners advocating Second Amendment gun rights who would jump at the chance to own a handgun if the laws weren’t so hostile to gun owners) act with pluralistic ignorance in ways that are inconsistent with their true beliefs and values. Even the National Rifle Association is afflicted with this malady by continuously compromising on gun control legislation. Misperceptions of a norm discourage the expression of opinions and behaviors that are falsely thought to be non-conforming, creating a negative cycle in which unhealthy behavior is expressed and healthy behavior is inhibited.44 Misperception of a constitutional norm, the national open-carry handgun, that was once a social norm, has led to the silencing of gun owners and the rise in verboseness of gun control advocates, where creating the negative cycle of unhealthy behavior (criminal activity) is expressed and healthy behavior (armed self-defense) is inhibited. It also allows abusers or perpetrators of problem behaviors to deny or justify their actions due to the (mis)perception that their behavior is normative (Baer, Stacy & Larimer, 1991; Pollard, et al, 2000). This cycle can be broken or reversed by providing individuals with correct information about the actual norm. All individuals who misperceive the norm contribute to the climate that allows problem behavior to occur, whether or not they engage in the behavior. Perkins (1997) coined the term “carriers of the misperception” to describe these individuals. The assumptions of social norms theory are presented in Table 1.45 This is the answer to any Second Amendment advocate who questions why the majority of gun owners do not take on a publicly active or activist role in defense of their rights. These inactive gun owners are carriers of misperception.

Table 1: Assumptions of Social Norms Theory 46 Assumptions of Social Norms Theory

Second Amendment Adaptation

1. Actions are often based on misinformation about or misperceptions of others’ attitudes and/or behavior.

Law-abiding citizens possessing or carrying a gun are misperceived as doing so with criminal intent.

2. When misperceptions are defined or perceived as real, they have real consequences.

Gun owners are harassed by law enforcement and businesses, gun-free zones, etc. Vulnerable to crime.

3. Individuals passively accept misperceptions rather than actively intervene to change them, hiding from others their true perceptions, feelings or beliefs.

Gun owners forced to leave guns at home in order to avoid social, legal harassment.

43

Berkow itz, Alan D ., Applications of Social Norms Theory to O ther Health and Social Justice Issues January, 2001 44

Id.

45

Id.

46

Ib. (Left side of table). The right half of table is my adaptation for Second Am endment rights.

21

Assumptions of Social Norms Theory

Second Amendment Adaptation

4. The effects of misperceptions are self-perpetuating, because they discourage the expression of opinions and actions that are falsely believed to be non-conforming, while encouraging problem behaviors that are falsely believed to be normative.

Gun prohibitions in urban areas encourages rise in murder and other violent crimes. Drug dealing, drive-by shootings, aggravated assaults, home-invasions, etc., become the social norm when belief of armed self defense is suppressed.

5. Appropriate information about the actual norm will encourage individuals to express those beliefs that are consistent with the true, healthier norm, and inhibit problem behaviors that are inconsistent with it.

Hence, the need for a Social Norms Marketing campaign to restore the Second Amendment’s national open-carry handgun as a positive social norm.

6. Individuals who do not personally engage in the problematic behavior may contribute to the problem by the way in which they talk about the behavior. Misperceptions thus function to strengthen beliefs and values that the “carriers of the misperception” do not themselves hold and contribute to the climate that encourages problem behavior.

“What can one person do?” Individual gun owners become hesitant or reluctant to publicly express their pro-Gun Rights views for fear of ridicule or harassment by gun control advocates and law enforcement. Thereby they become carriers of the misperception.

7. For a norm to be perpetuated it is not necessary for the majority to believe it, but only for the majority to believe that the majority believes it.

The misperception that if everyone had guns blood will fill the streets is perpetuated.

A Deadly Example of a Bad Law Arising From a Misperception: The Jessica Lynne Carpenter, Merced, California Story The main stream media’s latent bias and irresponsible disregard for truth did not widely report this story. This is a testimonial to the inalienable right to keep and bear arms for basic human survival, the right to life itself for the innocent. This story is about the misperception that responsible children of age and maturity and lovingly responsible parents both cannot be trusted to keep and bear their arms for the purpose of personal security in a responsible, lawful manner. That the firearms must be kept locked away, inaccessible to those, young and old and all ages in between when they are most needed in the instantaneous moment when life is in peril against an attacking criminal. Quoting from The Libertarian press release:47

Shouldn’t we repeal the gun laws . . . if it’ll save a single child? Jessica Lynne Carpenter is 14 years old. She knows how to shoot; her father taught her. And there were adequate firearms to deal with the crisis that arose in the Carpenter home in Merced, Calif. – a San Joaquin Valley farming community 130 miles southeast of San Francisco – when 27-year-old Jonathon David Bruce came calling on Wednesday morning, Aug. 23. There was just one problem. Under the new “safe storage” laws being enacted in California and elsewhere, parents can be held criminally liable unless they lock up their guns when their children are home alone . . . so that’s just what law-abiding parents John and Tephanie Carpenter had done. Some of Jessica’s siblings – Anna, 13; Vanessa, 11; Ashley, 9; and John William, 7 – were still in their bedrooms when Bruce broke into the farmhouse shortly after 9 a.m.

47

www.thelibertarian.net/2000/vs000924.htm. The Libertarian. Synd icated Essay s by V in Suprynowicz. From Mountain Media. For Immediate Release Dated September 24, 2000.

22

Bruce, who was armed with a pitchfork – but to whom police remain unable to attribute any motive48 – had apparently cut the phone lines. So when he forced his way into the house and began stabbing the younger children in their beds, Jessica’s attempts to dial 9-1-1 didn’t do much good. Next, the sensible girl ran for where the family guns were stored. But they were locked up tight. “When the 14-year-old girl ran to a nearby house to escape the pitchfork-wielding man attacking her siblings,” writes Kimi Yoshino of the Fresno Bee, “she didn’t ask her neighbor to call 9-1-1. She begged him to grab his rifle and ‘take care of this guy.’” He didn’t. Jessica ended up on the phone. By the time Merced County sheriff’s deputies arrived at the home, 7-year-old John William and 9-yearold Ashley Danielle were dead. Ashley had apparently hung onto her assailant’s leg long enough for her older sisters to escape. Thirteen-year-old Anna was wounded but survived. Once the deputies arrived, Bruce rushed them with his bloody pitchfork. So they shot him dead. They shot him more than a dozen times. With their guns. Get it? The following Friday, the children’s great-uncle, the Rev. John Hilton, told reporters: “If only (Jessica) had a gun available to her, she could have stopped the whole thing. If she had been properly armed, she could have stopped him in his tracks.” Maybe John William and Ashley would still be alive, Jessica’s Uncle said. “Unfortunately, 17 states now have these so-called safe storage laws,” replies Yale Law School Senior Research Scholar Dr. John Lott – author of the book “More Guns, Less Crime.” “The problem is, you see no decrease in either juvenile accidental gun deaths or suicides when such laws are enacted, but you de see an increase in crime rates.” Such laws are based on the notion that young children often “find daddy’s gun” and accidentally shoot each other. But in fact only five American children under the age of 10 died of accidents involving handguns in 1997, Lott reports. “People get the impression that kids under 10 are killing each other. In fact this is very rare: three or four per year.” The typical shooter in an accidental child gun death is a male in his late teens or 20s, who, statistically, is probably a drug addict or an alcoholic and has already been charged with multiple crimes, Lott reports. “These are the data that correlate. Are these the kind of people who are going to obey one more law?” So why doesn’t the national press report what happens when a victim disarmament (“gun control”) law costs the lives of innocent children in a place like Merced? “In the school shooting in Pearl, Miss.,” Dr. Lot replies, “the assistant principal had formerly carried a gun to school. When the 1995 (“Gun-Free School Zones”) law passed, he took to locking his gun in his car and parking it at least a guarter-mile away from the school, in order to obey the law. When that shooting incident started he ran to his car, unlocked it, got his gun, ran back, disarmed the shooter and held him on the ground for five minutes until the police arrived. “There were more than 700 newspaper stories catalogued on that incident. Only 19 mentioned the assistant principal in any way, and only nine mentioned that he had a gun.” “The press covers only the bad side of gun use, and only the potential benefits of victim disarmament laws – never their costs. “Basically all the current federal proposals fall into this category – trigger locks, waiting periods,” Lott said. “There’s not one academic study that shows any reduction in crime

48

A possible motive would later be revealed by the Grandmother of the slain children attributing drug use, devil worship, and a fetish for horror movies by John Carpenter (unrelated to the family), “and one [John Carpen ter mov ie] he esp ecially liked , that we h ave learn ed dep icts a killing do ne with a pitchfork.”

23

from measures like these. But there are good studies that show the opposite. Even with short waiting periods, crime goes up. You have women being stalked, and they can’t go quickly and get a gun due to the waiting periods, so they get assaulted or they get killed.” The United States has among the world’s lowest “hot” burglary rates – burglaries committed while people are in the building – at 13 percent, compared to “gun-free” Britain’s rate, which is now up to 59 percent, Lott repports. “If you survey burglars, American burglars spend at least twice as long casing a joint before they break in. . . . The number one reason they give for taking so much time is: They’re afraid of getting shot.” The way Jonathon David Bruce, of Merced, Calif., might once have been afraid of getting shot . . . before 17 states enacted laws requiring American parents to leave their kids disarmed while they’re away from home.

The above news story is from a dispassionate, impersonal, objective view of a reporter. If that isn’t enough to persuade you that innocent law-abiding citizens have a right to immediate access to personal firearms in defense of life and liberty then perhaps the following account from the grandmother of those slain children will strike terror in your hearts – the terror of gun control laws.

Grandmother of Slain Children Protests Trigger Locks and Mandatory Gun Storage 49 Mary Carpenter April 20, 2001 North Carolina General Assembly To Whom It May Concern, To my understanding you are debating the passage of laws requiring trigger locks and mandatory storage of guns. I am a second generation resident of the State of California, a mother and a grieving grandmother. I wish to express to you how trigger locks and mandatory storage laws in the State of California affected my family. I hope my testimony may save someone in your state from sharing the pain we must now endure for the remainder of our lives. No law you can pass will keep the irresponsible from shooting accidents or a felon from stealing a gun. I am enclosing a portion of a letter I wrote to my own state legislators concerning the constant progression of laws restricting our guns in my state. Depending on whether or not you truly care, you may or may not recognize my name. I am the paternal grandmother of the two children who were brutally murdered inside their rural Merced California home on August 23, 2000 by a stranger with a pitchfork. Instead of suing gun manufacturers, I am of the opinion it is our lawmakers who need to be sued. It was you who created the laws that kept my grandchildren from being able to dcefend themselves with any weapon greater than their bare hands. All of my son’s children had been trained in the use of firearms but were unable to get to their Dad’s weapon because of California State Law. You, who have CCW permits or armed bodyguards, or both expect me to face a society gone mad because of drug-altered brains and lax laws on the perpetrators of crime? You had no room in your prisons for the killer of my grandchildren though his wife had reported to the police in Mojave California in June of 1997 that he had forced her and their infant son into his car (kidnapping) while living in southern California? At that time she also reported how she had managed to escape from him in Mojave after he held a gun to her head (assault with a deadly weapon) threatening to kill her and their one-month-old child? Though more recently she had given to the Dos Palos California 49

www .aardva rknews.c om/ca rpenter.htm

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Police Dept. the tape from her message minder threatening to kill her present husband? Though he had assaulted a police officer while resisting arrest for drug charges? Though he had violated his parole by not appearing at his hearing and they had a warrant out for his arrest? Though they knew where he lived, and also his mother and grandmother, yet failed to pick him up? Will you then find room for my son in your prisons should his fourteen-year-old daughter have access to his gun while she is babysitting her siblings? There is a growing list, in my area alone, of people (mostly women) who might still be alive had they not been in a state where the use of a gun was prohibited. Juli Sund, Carole Sund, Selvina Pelosso, Joie Armstrong, Ashley and John William Carpenter to name a few. Lawmakers talk big about a woman’s right to choose yet don’t allow me the very basic right to choose to defend myself? If teachers were allowed to carry a concealed weapon to school you would see the school shootings disappear. The same is true with the citizen on the street. The reason is, these killers are cowards. You can tell by their choice of victims. They operate best where they know there are no guns. Look at your child tonight and imagine him or her with their eyes jabbed out, their skulls splintered, their brains pierced, and their spines broken with the heavy tines of a spading fork. In defending her sistes to the death with the only weapon you allowed her, Ashley had 138 puncture wounds. Twentynine of them were on the right side of her face, five on the back of her head, and thirty-seven to her chest and lower neck. (Obviously he was trying to behead her.) She was nine years old. While committing no crime greater than sleeping in his parents bed, in his own house, John William, 7-yearsold, was stabbed 46 times, with most of them in the chest, neck, and head. Depending on the condition of your heart, you may or may not feel a small measure of the pain my family and I must endure for the remainder of our lives. Now, imagine all the gun laws you can dream up and honestly admit whether or not they would have stopped such a mad dog as this. This man was a total stranger to the family, and other than a trace of marijuana, was not on drugs at the time. However, by the testimony of his wife and girlfriend, he was a drug user who became frightening whenever he used them. All your imagined gun laws will do is insure someone’s children will die again. Take a drive downtown and see for yourself all the drug addled brains. You may declare gun free zones, but you cannot declare killer free zones. This tragedy has made me realize I am not even safe in my locked home, my barn, or my backyard. I dare you to request the autopsy reports of John William & Ashley Danielle Carpenter done on August 28, 2000 from Sheriff Tom Sawyer of the Merced County Sheriff’s Dept. Also ask him for the police interview with the killer’s wife and girlfriend telling about his drug use and devil worship. Ask Detective Parsley about his fetish for horror movies produced by a John Carpenter, (no relation to us), and one he especially liked, that we have learned depicts a killing done with a pitchfork. His last employment was as a telemarketer in Merced. If you have an honest bone in your body your will see this country is in desperate need of a change of heart not the gun laws that have been in place for over two hunderd years. All the gun laws you can imagine cannot change the heart of a killer and you know it. Until man’s heart is change we will be like sheep led to the slaughter without our weapons of defense. May you stand before God and man as my two precious grandchildren’s killer if you pass any more gun legislation that will make me a felon should I own a handgun or any other gun for that matter. Sincerely, Mary Carpenter

The Carpenter’s neighbor didn’t intervene to stop the massacre because, in part, of fear of California law, federal gun laws, and the antagonistic media hype against gun owners all serve to perpetuate the misperceptions of gun ownership as America’s new leper colonies. The nature of man

25

is that all things conceived range from the threateningly criminal to the promisingly philanthropic. The trouble in today’s society and its government is much of what comes out of Congress, the state legislatures, the mainstream media, and the liberal pundits are threateningly criminal in their bias, if not treasonous, utterances against the Second Amendment, lawful gun ownership and its usage. Can anyone deny the logic that when a nation’s laws attain a state of affairs that its law-abiding citizens are being murdered because of their obedience to those laws? Is this the intent of gun control laws? To have gun owners and their families killed off? My God! That’s . . . GENOCIDE! The Jews for the Preservation of Firearms Ownership have published two books worth reading.50 These two books point out that the path our country is presently taking with gun control has only disaster in its future. These facts must not be ignored. In addition to these references the United States Code already has provisions to reverse the trend of gun control in place. The United States legally recognizes genocide as unlawful. 18 U.S.C. § 1091. Genocide (a) Basic Offense. - Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such: (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group; or attempts to do so, shall be punished as provided in subsection (b).

(d) Required Circumstance for Offenses. - The circumstance referred to in subsections (a) and (c) is that (1) the offense is committed within the United States; or (2) the alleged offender is a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)). Gun owners are a group. Gun control laws are federal and state sponsored mechanisms for genocide. 18 U.S.C. § 1091.(a)(1): Gun control laws kill members of that group. 18 U.S.C. § 1091.(a)(2): Gun control laws cause bodily injury to members of that group. 18 U.S.C. § 1091.(a)(3): Gun control laws induce permanent state of fear for being defenseless. 18 U.S.C. § 1091.(a)(4): Gun control laws were the catalyst for Waco & Ruby Ridge. 18 U.S.C. § 1091.(a)(5): American Medical Association advocates gun control laws. 18 U.S.C. § 1091.(a)(6): Social Services take disparagingly microscope view of gun owners homes.

50

Simkin, J ay, Aaro n Zelm an, and Alan M . Rice, Lethal L aws: “G un C ontrol” is the Key to Genocide: Documentary Proof: Enforcement of “Gun Control” Laws Clears the Way for Governments to Commit Genocide and Jay Sim kin & A aron Ze lman, “ Gun Control” Gateway to Tyranny: The Nazi Weapons L aw, 18 March 1938: Original German Text and Translation, with an Analysis that Shows U.S. “Gun Control” Laws Have Nazi Roots. Jews for the Preservations of Firearms Ownership, Inc., Milwaukee, Wisconsin.

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Yet where it is proven that genocide cannot occur in a nation where its citizens are lawfully armed but only occurs in nations where full gun control exists, gun confiscation soon followed does genocide eventually occur. For the United States to recognize genocide as a crime against humanity and yet actively pursue the very path that leads to genocide, incrementally increasing the number of gun control laws is a schizoidism of law. A Conflict of Law. Are the citizens of this nation growing more dissatisfied with their federal and state governments over these injustices? I believe they are. Is the predominant opinion that the federal and state governments are aiding and abetting the criminal slaughter of gun owners and their families through its gun control laws? I say yes. Before the brave hearted in this country resort to armed insurrection I suggest “Social Norming the Second Amendment” before all Hell breaks loose.

Social Norming the Second Amendment is Common Sense If the National Rifle Association truly desires to shed its reputation as Schizophrenic 51 then I suggest the NRA form a coalition with GOA, SAF, JPFO, KABA, other pro-Second Amendment groups, and public policy organizations in law and social psychology fields, and adopt the Social Norms Marketing method for the restoration of unlicensed national open-carry handgun, restoring a constitutional norm to its rightful place as a social norm. In other words, set off a media campaign blitz of public service announcements educating the public on the restoration of the old social norm of opencarry handgun. Send a delegation to The Fifth Annual National Conference on the Social Norms Model, July 10-12, 2002 in Philadelphia, Pennsylvania. The conference is organized by The Bacchus and Gamma Peer Education Network52 in conjunction with The National Social Norms Resource Center53 and is generously co-sponsored this year by The Pennsylvania Liquor Control Board.54 55 Are we to be a nation of lies governed by liars? Or, will the truth set us free? Let us turn the tide on the verboseness of gun grabbers. Let us become ourselves verbose for the truth in armed personal security as a social norm. Let us embrace Social Norms Marketing to set the record straight and correct the misperceptions perpetuated by the liars at large. Excerpts From

The Evolution of Social Norms: A Perspective From the Legal Academy 56 by Robert C. Ellickson The Supply Side of the Market for Norms: Change Agents . . . Cass Sunstein has devised the notion of a “norm entrepreneur,” a phrase that many legal scholars have since embraced. Both actors and enforcers may supply new norms. Actors participate on the

51

http://thene wam erican.co m/tna/2 000/0 6-05-2 000/vo 16no 12_n ra.htm

52

http://www .bacchu sgam ma.org

53

http://socialn orm.org

54

http://www.lcb.state.pa.us

55

http://socialnorm.org/home.html

56

Ellickson, Robert C., “The Evolution of Social Norms: A Perspective From the Legal Academy,” in Social Norms, eds. Michael Hechter and Karl-Dieter Opp. New York, Russel Sage Foundation, 2001, 35-75, citing material from pages 40-45.

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supply side when they adopt new patterns of behavior. . . . Enforcers serve as suppliers when they react in new ways to the behavior of actors. Those on the deman side of the market for norms then react to these stimuli. (Id. at 40. From section, The Supply Side of the Market for Norms: Change Agents.) I refer to an actor or enforcer who is relatively early in suppling a new norm as a change agent. According to the rational-actor perspective, a change agent offers new norms because he anticipates that over time he will receive a flow of benefits that will outweigh (in present-value terms) the various costs he will incur while acting in that role. A change agent moves earlier than others because his expected net benefits from acting in that role are unusually large. This may be so either because his expected costs are lower or his expected benefits greater, or both. (Id. at 41.) Change agents tend to have attributes that make them relatively low-cost suppliers of new norms. In general, they posses superior technical intelligence, social intelligence, and leadership skills. These attributes reduce the opportunity costs they incur when they work for norm reform. . . . (Id.) Apart from costs and benefits, change agents tend to have relatively low discount rates and long time horizons. The stigma and other personal costs of attempting to change a norm generally are incurred early, whereas the esteem and tangible benefits generally are reaped late. The more future-oriented a person is, the more rational it is to pursue social reform.57 (Id. at 42.) As a merchant seaman, I have been corresponding with the U.S. Coast Guard to address the necessity and feasibility of arming merchant seamen while ashore under the jurisdiction of U.S. Law and not under the jurisdiction of Maritime Law, to augment port security plans for our nation’s seaports and harbors, thus fulfilling the “common defense” as stipulated in the United States Constitution. Because I was insistent on this new approach to national security and taking a dramatic literary approach to convey the fear citizens live with everyday of their lives of being murdered by the criminal element of society because the citizens do not have immediate possession and access to personal firearms to defend their lives and liberty the Coast Guard misperceived my communication as a direct personal threat against the Coast Guard officer I had been corresponding with. That caused this Coast Guard officer to exercise poor judgement by initiating a criminal investigation via the Navy Criminal Investigation Service (NCIS). I happened to be aboard a U.S. government contracted U.S. merchant vessel anchored off the coast of Lithuania. This Coast Guard’s action occurred on the eve of the vessel’s scheduled departure for a 10-day exercise at sea causing me to miss the ship and the company to foot the bill for a 12-day hotel stay for a 2-hour interview with the two special agents of the NCIS. My goal is not only to encourage the government to implement constitutional measures for the common defense by relying of the citizen-sailors of the nation but also to restore constitutional norms of the Second Amendment as social norms. As noted in Ellickson’s passage above, I incurred an unwarranted criminal investigation, which is Ellickson’s noted “stigma and other personal costs of attempting to change a norm generally are incurred early.” This is characterized in my case as a citizen exercising his First Amendment right to petition the government for redress of grievances, and the government not only ignores the petition but retaliates against the citizen for being a persistent nuisance. The government only pays attention when it is taken to court. The Coast Guard’s error of judgement opened the door for me to continue my effort to effect Second Amendment legal and social norms change by taking the case to the U.S. District Court for the District of Columbia for an application for Writ of Mandamus and to recover damages for defamation. These two cases are: Don Hamrick, U.S. Merchant Seaman v. President George W. Bush, et al. U.S. District Court for the District of Columbia, Civil Action No. 1435ESH, July 18, 2002 (Writ of Mandamus)

57

Emphasis mine.

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Don Hamrick, U.S. Merchant Seaman v. Admiral Collins, Commandant, U.S. Coast Guard, et al. U.S. District Court for the District of Columbia, Civil Action No. 1434ESH, July 18, 2002 (Damages) In an effort to clarify the dynamics of norm change, I distinguish between three subcategories of change agents: self-motivated leaders, norm entrepreneurs, and opinion leaders. Although all three types respond relatively early to a shift in cost-benefit opportunities, they lead for different reasons. (Id. at 42.) Self-Motivated Leaders Self-motivated leaders move early to change a norm because, owing to their special endowments and talents, they anticipate receiving unusually high levels of net tangible benefit from challenging the existing norm.58 Indeed, these net tangible benefits are sufficiently large59 to motivate them to favor change even in the absence of potential esteem rewards. (Id.) Self-motivated leaders commonly spark changes in the network norms that facilitate communication and coordination. (Id.) When a new norm suddenly becomes manifestly advantageous for a group, many self-motivated individuals with unexceptional leadership abilities may supply it simultaneously.60 When this happens, historians will have difficulty attributing the new norm to particular change agents. For instance, dueling fast became extinct in the South once the Civil War had shattered the social networks of the southern aristocracy. Although anti-dueling societies had been active in the South before the war esteem rewards apparently were not needed to motivate the rejection of dueling after Appomattox. (Id. at 43-44.) The same change can be predicted with today’s drive-by shootings, multiple-victim public shootings in schools, fast food restaurants, home invasions in “safe-storage” gun control states and with many other anti-self defense laws imposed as the current social norms. Norm Entreprenuers . . . Norm entrepreneurs are specialists who campaign to change particular norms, whereas opinion leaders are generalists. (Id. at 44.) What special traits distinguish a successful norm entrepreneur? First, a norm entrepreneur tends to possess a relatively high level of technical knowledge relevant to the norms within his specialty. This knowledge enables the entrepreneur to respond early to a change in cost-benefit conditions. . . . Second, a norm entrepreneur is likely to be cognizant that there are appreciative experts (often, close associates in a social sub-group) who are likely immediately to esteem the norm entrepreneur for trying to change the social norm practiced at issue. In other words, a norm entrepreneur faces unusually favorable conditions on the demand side of the norms market. (Id.) Opinion Leaders Unlike the self-motivated leader and the norm entrepreneur, the opinion leader is not at the forefront of norm change but instead is located one position back from the front. An opinion leader evaluates the initiatives of these other change agents (the true catalysts) and then decides which of their causes to endorse. Opinion leaders therefore play a pivotal role in determining whether change agents succeed in triggering a cascade toward a new norm. (Id. at 45.)

58

Anti-gun society

59

Reduction in the murder rates and other violent crime rates.

60

Build it ! They will com e! - quo ting from a base ball m ovie

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A successful opinion leader tends to have two exceptional characteristics. The first is an usually high level of social intelligence, which helps the opinion leader anticipate better than most which social innovations will end up attracting bandwagon support. An adept opinion leader, for example, may be aware that many people have been disguising their true opinions about the merits of current norms. (Id.) I might correctly assess that I have educated myself with years of leisure time self-study in the original intent of the United States Constitution. And with this new awareness in how things were meant to be and seeing how our federal government is taking us down the thornbush path to a totalitarian, militaristic police-state I began to voice my opinions in any available arena. For several years one of those arenas was the Internet discussion board of Arkansas Representative Asa Hutchinson. I can safely allege that Rep. Asa Hutchinson never paid attention to my “Gun Rights Restoration” messages. His example exemplifies the allegation that the “Government doesn’t listen to its citizens pleas for freedom as it continues to restrict and steal more of our freedoms in the name of security. I am serving as an opinion leader with this paper. The current self-motivated leaders and norm entreprenuers (Second Amendment scholars and gun rights organizations) are admirably but erroneously attempting to introduce reciprocal concealed-carry license for all fifty states. From a legislative focus in would be far easier to simply repeal gun laws that restrict the right to keep and bear arms, allowing both interstate and intrastate travel with unlicensed open-carry handgun for personal security. The Process of Norm Change Either sort of exogenus shock — a shift in internal cost-benefit conditions61 or an alteration of group membership62 — can spur a group to change its informal rules. However, it is not groups, as such, that act but, rather, individuals. As previously discussed, individuals possess different attributes that incline them to play specialized roles in the process of norm change. (Id. 51) I am one individual, “possessing different attributes that incline them to play a specialized role in the process of norm change.” As a merchant seaman I objected rather harshly to a gun control provision in Senator Hollings’ Senate bill, S.1214, The Port and Maritime Security Act of 2001. It provides in Section 7(c)(4) restrictions on carrying firearms. This, in addition to an unsettling speech by the Commandant of the U.S. Coast Guard at the Heritage Foundation63 prompted me to write letters to Senator Hollings, the Commandant and other government officials and pro-Second Amendment organizations about my concerns on the infringements of our right to keep and bear arms under the Second Amendment. On February 14, 2002, in advocating my pro-Second Amendment position, I submitted an application to the U.S. Coast Guard for a national open/concealed carry handgun endorsement on my merchant seaman’s I.D. card, supplying ample legal, social-psychology influence on social norms, religious and political arguments supporting the application. The application possessed a dual-purpose function: (1) to set a precedence for the defense of our nation’s seaports by the simple measure of arming U.S. merchant seaman with their Second Amendment rights to keep and bear arms when they are ashore, whether for liberty from a ship, or on vacation between ships, and (2) establishing the emergence of a new (or reestablishing an old) social norm of national open-carry handgun for all law-abiding citizens. I have not as yet learned of the outcome of this application.

61

The bombing of the World Trade Centers, the Pentagon, the down ing of U nited F light 93 in Pennsylvania. 62

Removal of current pro-Second Amendment leaders refusing to address the national open-carry without

a license. 63

www .uscg.m il/Comm andan t/Speech es/Heritag e/%20 Found ation% HLS% 2012 1701 .htm

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My comments on S. 1214 were: “This is another example of a thoughtless, knee-jerk reactionary and fallacious show of legislative force with no regard to the Second Amendment nor to the Bill of Rights. This effort will backfire, as all attempts at gun control always fail in reducing crime but in fact increases murder and other violent crimes, because the government doesn’t trust lawabiding citizens, as in the case of this Senate bill, law abiding (maritime) licensed and unlicensed merchant seamen to lawfully carry concealed weapons for their Constitutional right to armed personal security in a lawful manner when ashore for liberty, vacation, or in transit to and from their dispatched ships for employment. Nor is their any regard for the beneficial effect of added national security of our seaports that such a policy would provide. Section 2 of the bill, Congressional Findings, errs because Congress failed to find any Constitutional right of maritime personnel to assist in law enforcement activities under the once traditional service of the Posse Comitatus (cf. security of a free state in the Second Amendment). The Senate bill provides for the ever increasing roll of the federal and state governments in expanding the police powers of government while making no provisions, and sometimes criminalizing whole sections of society, as in the case of Section 7(c)(4), merchant seamen, their lawful right and duty to act as part of the Posse Comitatus as mentioned in pages 11-13 of this citizen paper. My advice to Congress: “Get us off the slippery slope of gun control. Otherwise, you will unwittingly, or maybe it is your intention to, transform a free republic into a strict dictatorial, totalitarian police-state with a soldier-like police force in every part of the Commerce Clause of the United States Constitution.” The Senate passed S. 1214 with its gun control provision. Again, another example of the employees (elected officials) telling the boss (citizens) how things are or will be. Restoring the right to openly carry a handgun for personal security will be an uphill struggle. But the long term reward of a safer society, in my personal opinion, is worth the effort. I challenge the academic community and the government to test my proposal. . . .According to the new norms scholars, in the paradigm case an upstart norm starts slowly, gains momentum, and culminates in a triumphant rush. Various authors refer to a tipping point being passed, an equilibrium changing not gradually but in punctuated fashion, or a cascade being triggered. (Id.) The literature on cascades suggests why people follow leaders. Works in this genre distinguish between two relevant phenomena: informational cascades and reputational cascades. According to the foundational article, “An informational cascade occurs when it is optimal for an individual, having observed the actions of those ahead of him, to follow the behavior of the preceding individual without regard to his own information.” One goes along with the crowd on the ground that the crowd is probably right. (Id.) The anti-gun, anti-self-defense crowd is in the wrong. Those of us who have been intimidated by this politically loud-mouthed crowd have, indeed, have gone along with crowd even though we know the crowd is wrong. We place our lives, our liberties, our security as a society and a nation in these misguided anti-Second Amendment crowds. I have elected to publicly oppose these crowds and redirect public opinion in order to establish Second Amendment norms in social norms.

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The Proving Grounds! Since unlicensed “restricted to state boundaries” open-carry is the law in Virginia, Nevada, and Maine64 these states provide the prime locations (the urban, the suburban, and the rural) to initiate this new social norm, not as a trial basis, but for its permanency. Utilizing the Social Norms Marketing approach the initial phase would be to educate the public on the law of unlicensed open-carry handgun in public service announcements while laying down the foundation for expected behavioral norms. Once law-abiding citizens (individuals) feel comfortable with their knowledge of the law and what is expected of them in their behavior as they go about society with a sidearm they are more likely to muster up their courage and experimentally try this new behavior. When more citizens observe that law and order is still maintained, and blood is not running in the streets, that society is still polite and normal then the predicted cascade will occur empirically proving that an armed society is a polite society. . . . A person joins a reputational cascade, by contrast, to avoid the social disapproval that may be visited on those who are out of step (Kuran 1998; Kuran Sunstein 1999, 685-87). One goes along with the crowd to be with the crowd, even if one knows that the crowd is wrong. (Id. at 51-52.) This is true for the anti-gun crowd as they are enforcing the current anti-gun social norm. The purpose of initiating a Second Amendment social norm is to correct the wrong-headed anti-gun crowd and restore true personal security for society. In this new social norm of open-carry handgun those who are reluctant to adopt the new social norm will risk disapproval, informal sanctions, as one who advocates anti-social behavior and as being soft on crime. Politicians are extremely fearful of being tagged as soft on crime and will dutifully support open-carry handgun laws with its associated social norm as the being “tough on crime” thesis gains popularity. The speed of norm evolution is determined by the rates at which the members of the group acquire the technical and social knowledge necessary to appreciate that a new norm is more utilitarian than the old one. The entire process may proceed briskly. (Id. at 52)

In Guillermina Jasso’s Rule Finding About Rule Making: Comparison Processes and The Making of Rules65 under the section, Studying the Making of Rules: First Principles,’ Basic Premises, he offers four candidates for basic forces governing human behavior: 66

! ! ! !

to know the causes of things, leads to rule finding. to judge the goodness of things, leads to rule making. to be perfect, leads to both rule making and rule unmaking. to be free, leads to the unmaking of rules.

. . . All four candidate forces have been ascribed to humans as fundamental aspects of human nature. All four refer to properties ascribed to God. All four refer to things that play prominent parts in the discourse between humans and deities, both in what deities say they do for humans and in what humans pray for. All four appear not only in what humans pray for but also in what they renounce in the spirit of sacrifice. As both Émile Durkheim and Max Weber understood, the deepest aspects of human nature manifest themselves in religious phenomena, and thus the sociology of religion may

64

Snyder, J effrey R., Fighting Back: Crime, Self, and the Right to Carry a Handgun. Cato Institute, Policy Ana lysis No. 284, October 22, 1997. Quoting from section, The “Ignoble Act” of Carrying Concealed Weapons. (Footnotes omitted) 65

Jasso, Guillermina, “Rule Finding About Rule Making: Com parison Processes and The Making of Rules,” in Social Norms, eds. Michael Hechter and Karl-Dieter Opp. New York, Russel Sage Foundation, 2001, 348-393, citing material from pages 350-351. 66

Id. at 351 . Citing from section “R ule Ma king and the Bas ic Forces.”

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play a prominent part in the methodology for unmasking the basic forces. Finally, note that it may someday be seen that the basic forces governing human nature are more than four perhaps, at the other extreme, only one, the others being manifestations of a single more basic force. (Id. at 350-51.) Finally, the multifactor view poses special empirical challenges, for the operation of two factors may lead to opposite effects, and hence isolating the two effects becomes the prime empirical objective. It may at first appear that one prediction is rejected, but in fact it may be that one of the two effects is stronger than the other. For example, suppose that mechanism A predicts that y is an increasing function of x. The empirical finding that y is an increasing function of x does not constitute, in a multifactor world, evidence that mechanism B is not operating; rather, the finding would be consistent with the operation of both mechanisms such that the effect of mechanism A is stronger than, or “dominates,” mechanism B. The converse would also be true. This is one of the reasons why the more fruitful a theory the easier it is to test. (Id. at 351.) Translated to the current proposal: Mechanism A, gun control laws effect on human nature, predicts that y, obedience to gun control laws by law-abiding citizens, is an increasing function of x, being murdered by the criminal element of society. Mechanism B, federal law protecting national right to open-carry handgun by law-abiding citizens, predicts that y, obedience to the new federal open-carry law, is a decreasing function of x, being murdered by the criminal element of society. Sounds plausible to me! My unscientific prediction is that a national open-carry handgun society will be proven to be a positive social norm, even amongst the verbose minority of nay-sayers. Mentioned at the start of this paper Aaron Zelman’s open letter to President Bush and his administration67 offers recommendations for homeland security that provides the basis for the rules of a new (or more aptly, an old) social norm. These recommendations are: Explicitly recognize and encourage Americans' unlimited right to self-defense and defense of their own communities.

! Encourage citizens to be aware of their rights and responsibilities, particularly their second-amendment rights.

! Immediately instruct the ATF, FBI, and any other federal enforcement agencies to cease prosecuting non-violent Americans for technical violations of firearms laws or regulations.

! Permit and encourage Americans to bear arms on federal lands and in federal buildings.

! Considering that courts have repeatedly declared that government law enforcement has no obligation to protect any individual, encourage states to enable citizens to defend themselves or their communities.

! Encourage those with military or police experience to share their expertise with fellow citizens in the form of firearm-training courses and other defense skills. Aaron Zellman’s recommendations will help provide the backing of government support and enforcement of Second Amendment norms as explained in the following:

67

Supra note 2.

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Excerpt from

The Enforcement of Norms: Group Cohesion and Meta-Norms 68 by Christine Horne

Many scholars argue that group cohesion contributes to social order — that norms are more effective in tight-knit communities. One explanation for this correlation suggests that it can be attributed to higher rates of sanctioning in solidary groups. Criminoligists, for example, emphasize the role of community integration in controlling deviant behavior. They argue that when a community disintegrates, it “ceases to function effectively as a means of social control . . . . Resistance . . . to delinquent and criminal behavior is low, and such behavior is tolerated.” Studies show that in cohesive communities, people express greater willingness to impose sanctions against those who engage in deviant behavior. At least some research, then, suggests that one reason for higher levels of order in cohesive groups is that deviance is more likely to be punished in such groups.

Conclusion If American society is “disintegrating,” without Second Amendment norms, even in the hiatus of post September 11, 2001’s unifying patriotism, the factional perpetual liberal-conservative struggle over gun control agendas is or will be the cause of the deteriorating cohesiveness of the American dream, to live free in a republic, but yet to insure one’s own safety with personal possession of firearms is surely approaching death’s door. The law-abiding citizen’s resistance to delinquent and criminal behavior from others in society, and from those in state and federal government service, both elected and bureaucratic types, having been and continues to be incessantly attacked by a trickling avalanche of gun control laws is not dissimilar to terminal cancer. Sometime after the September 11 terrorist attacks I watched a CNN female anchor as she interviewed someone about United Flight 93 crashing in a Pennsylvania field, questioning whether the male passengers storming the cockpit to regain control of the plane from the terrorists were actually vigilantees. There, in full view of millions of viewers, perpetuating their haunting bias, a blatant act of ignorance to citizens’ inalienable human rights to save there own lives and the lives of countless others not on that plane. This is just another instance of CNN reinforcing their reputation as being the “Communist News Network.” This pervasive anti-gun, anti-self-defense attitude has a killing effect on certain rights and innocent lives, i.e., the right to make a citizen’s arrest, the right to be part of a legal posse comitatus, the right to organize and participate in lawful unorganized militia activities as social events at state and county fairs, and gun shows, where society can learn and practice their Second and Ninth Amendment rights. Any direct defensive action, through informal sanctions, or overt self-defense on the part of the victim is often meet by the law, the courts, the media, and reinforced by society, with the ever oppressive “you cannot take the law into your own hands.” Yet, were does the law come from, but from the citizens. It comes from the citizens electing their state and federal senators and representatives to make the laws they want and need. It comes from citizen’s serving on jury duty to render judgement not only on the accused but also on the law itself. Where is the check and balance mechanism when judges deny jurors their right to determine the constitutionality of particular laws, and in its stead, tell the jurors what the law is? Jury nullification is a hotly contested issue. Where is the check and balance mechanism when all three branches of government coordinate in a cooperative manner to pass unconstitutional legislation? This is

68

Horne, Christine, The Enforcement of Norms: Group Cohesion and Meta-Norms, Social Psychology Quarterly, Vol. 64, No. 3, September 2001. A Journal of the American Sociological Association.

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synonymous to employees telling the boss how things are to be or not to be, invoking their personal prejudice against the Second Amendment into the law, thus turning the U.S. Constitution upside down. These injustices serve in part for the disintegration of American society. Citizen’s have no incentive to enforcing Second Amendment social norms through informal sanctions, or even to exercise their right to make a citizen’s arrest for fear of retaliation from neighbors, the ACLU, the law, the media, and even the accused. The costs are simply just too high. Can we not yet establish the allegation of governmental tyranny that our right to petition the Government for a redress of grievances provides in the First Amendment? The law must be reformed in these debilitating areas, fortifying the citizen’s rights and duties of citizenship, minimizing or eliminating the risks of enforcing social norms. An open-carry handgun law, backed by government enforcement, will provide individual U.S. citizens a unifying national identity, spanning race, gender, and religion, which will reinvigorate a sense of community in both the local and national sense. We have been terrorized and oppressively governed preventing us from exercising our Second Amendment rights through lies and fear for too long. We have had our constitutional rights pick-pocketed from us for so long that we cannot even recognize the conditions of involuntary servitude to government and criminals that we are actually in. If we have been for decades, as some will say, perhaps with impenetrable legitimacy, in a state of national emergency shouldn’t We, the People be a part of our nation’s defense? Why should government claim a monopoly on self-defense with arms? The military is perpetually developing more advanced lethal weapons, even high-tech ammunition that can kill the enemy hidden behind buildings for its soldiers while the government continues restricting citizens’ rights from owning or using even the simplest of handguns. All checks and balances separating tyranny from freedom are dismantled. Tyranny has banished freedom from our Second Amendment. Let’s go back to the old social norm, the U.S. Constitutional norm of national open-carry handgun without that tyrannical license in accordance with the Second, Ninth, Tenth, and Thirteenth Amendments to our U.S. Constitution. Let us live free and be safe, as safe as we can make it for ourselves, and for each other because the government has failed us in this matter.

Social Norming Resources 69 National Social Norms Resource Center Social Sc ience Re search In stitute 148 N . 3 rd Street DeKalb, IL 60115 (815) 753-9745 www .socialno rm.org

www.edc.org/hec/socialnorms Alcohol and Other Drug Education Project Hobart and William Smith Colleges Geneva, NY 14456 (315) 781-3000 www.hws.edu/ACA/depts/alcohol/index.html

Social Norms Marketing Research Project Education Development Center, Inc. 55 Chapel Street Newton, MA 02458 (617) 969-1060 Fax (617) 928-1537 Ema il socialnorm s@ed c.org

Monito ring the Fu ture Institute for Social Research University of Michigan 426 Thompson Street Ann Arbor, MI 48104 (734) 764-8354 www .monito ringthefutu re.org

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www .saddon line.com /links.htm

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Social Issues Marketing 70 Social M arketing N etwork www.hc-sc.gc.ca/hppb/socialmarketing

health/social section) www.uiowa.edu/~commstud/resources

Social Marketing Resources www.social-marketing.com

Health Risk Communication Principles and Practices www.atsdr.cdc.gov/HEC/primer.html

Social Marketing Strategies for College Campus www.edc.org/hec/pubs/soc-marketing-strat.html

The CDCs Health Com munication Research Page www.cdc.gov/od/oc/hcomm

Social Norms and Social Marketing (Higher Education Center - Education Development Center) www.edc.org/hec/socialnorms

The American Communication Asso ciation’s Research/Studies Center www.uark.edu/~aca/acastudiescenter.html The National Communication Association’s (NCA) Publication page www .natcom .org/pubs /default.htm

Journal of Health Communication www.aed.org/JHealthCom The Interactive Health Communication Science Panel (publicatio ns, researc h, resourc es, etc.) www.health.gov/scipich UI’s Communication Dept’s Resource page (different communication sectors; has

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John Hopkins Center for Communication Programs (Behavior Change Communication) www .jhuccp .org/beha vior/index.stm

good

www.psaresearch.com/bibsocial_websites.html

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Transmittal Sheet From: Don Hamrick 5860 Wilburn Road Wilburn, Arkansas 72179 To: National Rifle Association NRA-ILA 11250 Waples Mill Road #1 Fairfax, VA 22030

Prof. John Lott Yale Law School Box 208215 New Haven, CT 06520-8215

Gun Owners of America

Prof. Brannon Denning Southern Illinois University Law School Lesar Law Building 1150 Dougla s Dr. Carbondale, IL 62901-9912

Second Amendment Foundation KeepAndBearArms.com

Eric M. Axler Seton H all Ukniv ersity 400 South Orange Ave. South Orange, NJ 07079

Aaron Zelman, Executive Director Jews for the Preservation of Fire arms Own ership Concerned Citizens Opposed to Police States (CCOPS) P.O. Box 270205 Hartford, WI 53027

Jeffrey J. Rachlinski Chicago-Kent College of Law 565 W . Adam s St. Chicago, IL 60661-3691

Dave Kopel Indepe ndent In stitute 14142 Denver West Pkwy, Suite 185 Golden, CO 80401

Cato In stitute 1000 Massachusetts Ave., NW Washington, DC 20001-5403 Mark C. Niles Ame rican Un iversity Washington College of Law] 4801 Massachusetts Ave., NW Washington, DC 20016

Stephen Halbrook 10560 Main Street, Suite 404 Fairfax, VA 22030 Eugene Volokh UCLA School of Law 405 Hilgard Ave. Los Angele, CA 90095

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