Second Amendment Project Newsletter, May 10, 2000

About once a month, Dave Kopel produces a free e-mail Newsletter containing short summaries and links to important new research and writing involving the Second Amendment and firearms policy. The newsletter also reports on Kopel's latest writing.

The content of this newsletter is produced by the Second Amendment Project at the Independence Institute, a think tank in Golden, Colorado. The newsletter is electronically distributed by the Second Amendment Foundation in Bellevue, Washington. Thus, the Second Amendment Foundation will be given your e-mail address.

The Second Amendment Project is based at the Independence Institute, a free-market think tank in Golden, Colorado. http://i2i.org

5. Misnamed "million mom march." Second Amendment Sisters counter-march. Kopel/Lott/SAS on Diane Rehm Show. Kopel column.

"Smash-up Policing: When Law Enforcement Goes Military." National Review, print edition, May 22, 2000. Analysis of the Elian Gonzalez kidnapping as a starting point for discussion of militarization of American police, as a result of the drug war.

"The Gore Gun Agenda." Discussion of the secret report of the White House Working Group. National Review Online.,May 5, 2000.

"Who Is Al Gore Kidding?" On guns and the National Zoo, Gore is either dishonest or stupid. By Dave Kopel and Clayton E. Cramer.

* "The Supreme Court's Thirty-Five OtherGun Cases: What the Supreme Court has said about the Second Amendment,"18 St. Louis University Public Law Review99 (1999). Every word the Supreme Court has ever written about the Second Amendment. Shows that the Court has consistently regarded the Second Amendment as an individual right similar to other items in the Bill of Rights.

* "The Sounds of the Supremes: A Reply to Professor Yassky," 18 St. Louis U. Pub. L. Rev.203 (1999). Brooklyn Law Professor David Yassky wrote an article critiquing the "Thirty-five Other Cases" articles. Here, Kopel replies to Yassky.

(The above two articles are part of a firearms policy symposium issue containing articles by Gary Kleck, Andrew McClurg, Rep. Cliff Stearns, Sen. Dick Durbin, and many other interesting authors.)

* "Clueless: The Misuse of BATF Firearms Tracing Data," 1999 Detroit College of Law at Michigan State University Law Review171.

On the web: A draft version of the first article (containing many typos, etc.) is available at http://i2i.org/crimjust.htm. A polished version of the second article ("Sounds of the Supremes") should be available from the same URL within a week or two.

On paper: Both journals should be available at academic law libraries, or at non-academic law libraries in the Missouri or Michigan regions.

By mail: To order a copy of the St. Louis symposium (volume 18, number 1), send a check for $12.50 to Susan R. Lee, Public Law Review, St. Louis University School of Law , 3700 Lindell Boulevard, St. Louis, MO 63108. Make the check out to "Public Law Review."

To order a copy of the Michigan State University issue (1999 volume, number one), send a check for ten dollars to The Law Review of Michigan State University - Detroit College of Law, 210 Law College Building, East Lansing, MI 48824-1300.

"Treating Guns Like Consumer Products." 148 University of Pennsylvania Law Review1701 (2000). Part of a pro/con exchange with Steve Teret & Jon Vernick, of Johns Hopkins University. Currently at the printer.

"The Self-Defense Cases: How the Supreme Court Confronted a Hanging Judge in the Nineteenth Century," 27 American Journal of Criminal Law(no. 3, 2000, forthcoming). To be published this summer.

"The Evolving Police Power: Some Observations for a New Century," Hastings Constitutional Law Quarterly(2000, forthcoming). With Glenn Harlan Reynolds. To be published this summer or fall.

The authors urges a gun buyback program to disarm malfeasants like the perpetrators of the illegal abduction of Elian Gonzales.

civil rights enjoy so much the enthusiastic and credulous media puffery as currently enjoyed by the political operatives in charge of the "Million Mom March."

* You'd never know it from reading most of the coverage in the old media, but women who are FOR constitutional rights, personal responsibility, and pro-actively protecting children are organizing their own demonstrations on Mothers Day. They're the Second Amendment Sisters, and they probably have a rally scheduled near where you live. For information about how to participate or contribute, visit the Second Amendment Sisters website:

* For analysis of the SAS vs. MMM controversy, go to About.com's always excellent Civil Liberties site, at:

* The Diane Rehm radio show, displaying commendable balance, will do pro/con shows on the MMM on Thursday and Friday. The Friday show will feature guests extolling the anti-civil rights demonstration.

The Thursday show will feature Dave Kopel, John Lott, and a representative from Second Amendment Sisters. The Thursday segment will air from 11 a.m. to noon, Eastern Time. You can listen to the Diane Rehm show on many National Public Radio affiliates, or you can listen on the Internet. Just go to: http://www.wamu.org/dr/

[Advance draft of column to appear on National Review Online, www.nationalreview.com]

Voltaire once observed that that Holy Roman Empire was "neither Holy, nor Roman, nor an Empire." (It was a political, not religious, entity; it was based in Germany, not Italy; and for hundreds of years before Voltaire, had exercised almost no real power over its confederate members.) The so-called Million Mom March is just as misnamed—and as useless to modern society—as the Holy Roman Empire.

Even the MMM publicity machine is now promising only a hundred thousand marchers, not a million at the Washington Mall, as had been originally planned. Some of the crowd will be mothers, but plenty won't. And they won't be actually marching, just standing around listening to speeches from experts like Rosie O'Donnell (who has forthrightly admitted that she wants to send every gunowner to prison) and Susan Sarandon (who spent last weekend at a Madison Square Garden rally for Mumia Abu-Jamal, who used a revolver to murder a policeman).

Nor—despite the fawning publicity from the old media—is the MMM a grassroots organization. It is run by a former Democratic Senate staffer who is related to the Clintons.

The MMM is controlled by the Bell Campaign, an extremely wealthy anti-gun organization based in San Francisco. Rather than simply being for gun control, the group is plainly against gun ownership in general; the Bell Campaign organizes pickets against sporting goods stores simply because the stores sell firearms, and its website warns women not to own or carry guns for protection.

The extremism of the Bell Campaign and its MMM front was illustrated this spring in Colorado. There, Kathleen Hopkins, the state coordinator for the MMM, had convinced the head of the Women's Shooting Sports Foundation (which is headquartered in Colorado Springs) to participate in the MMM. The Foundation's head, Shari LeGate, planned on distributing trigger locks at the Colorado MMM rally. Hopkins sent off an ecstatic e-mail to her group, predicting that in the long run, getting support from moderate hunters and other gun owners would be the key to political success for the MMM.

The national Bell Campaign didn't think so. A few days later, Hopkins was fired. Her farewell e-mail explained: "I also think it would be a wonderful thing if the Women's Shooting Sports Foundation joined our march in support of moderate legislation. I think it is foolish to NOT include any and all moderate gun owner groups. I believe that the reason I was fired is because of my belief that the WSSF is a good group that will help us achieve our goals."

Although couched in appealing language about "gun safety" for "children," the Bell. MMM agenda amounts to nothing but lobbying for more restrictions on law-abiding gun owners. As for actually promoting safety—such as by giving away trigger locks—Bell and MMM do nothing.

Earlier this week, the NRA announced a million dollar additional commitment to real gun safety—through the Eddie Eagle education program. Eddie Eagle, like Smokey the Bear, is an animated character who teaches safety rules. In Eddie's case: "If you find a gun, stop! Don't touch. Leave the area. Tell an adult." The National Safety Council honored the creator of the Eddie Eagle Program (former NRA President Marion P. Hammer) with a Citation for Outstanding Community Service. Gun prohibition lobbyists complain that Eddie Eagle does not include any anti-gun content.

Like the rest of the anti-gun lobby, Bell/MMM are opposed to protective gun ownership. "While we acknowledge that guns may be necessary for hunting, law enforcement and national security, the proliferation of firearms is out of control," says MMM's website. In other words, MMM does not acknowledge the legitimacy of gun ownership for lawful self-defense, or defense of one's family.

The Bell/MMM idea of public safety is apparently to stop people from using firearms to protect their families, and to impose more burdens on people who want to exercise their constitutional rights. "The Second Amendment is irrelevant," they claim.

The Second Amendment isn't irrelevant to the millions of American mothers who have used firearms to protect their families, to stop rapists, and to save innocents. It is these women who actually dosomething about children's safety, as opposed to the Bell/MMM approach of merely complaining about it.

Unlike Bell/MMM, Carrie Nation and her Women's Christian Temperance Union were a genuine grassroots movement, but Bell/MMM and the WCTU do have a lot in common. Both groups see the many problems that result from the abuse of a particular physical object (alcohol, or firearms). Both groups display a contemptuous, smug, and mean-spirited superiority to people who disagree with them. Both groups terribly misunderstand human nature, and blame evil on objects rather than on the moral choices of individuals.

Both groups rely on childishly terrifying people about children as a substitute for thoughtful discussion of policy issues. "The Saloon, or the Boys and Girls" was a popular prohibitionist poster; MMM's symbol is a childish scrawl imposed over a drawing of a handgun.

And both groups use incremental "reasonable controls" as part of a long-term march towards prohibition. The Bell Campaign website applauds the confiscation of every handgun in Great Britain, and of every self-loading rifle and shotgun in Australia.

In the 1960s, adults sometimes had to remind themselves that the SDS didn't speak for most college students. Today, political observers need to remember that most American mothers—even most American soccer moms (I know a lot of them, since I'm a soccer referee)—aren't represented by the anti-gun lobbyists and their much-less-than-a-million-marchers. So there's no need to despair that the "soccer moms" want to overturn the Second Amendment.

Just to make sure that the American public is reminded that not all American mothers want to do to gun owners what Carrie Nation did to wine-drinkers, a new, genuinely grassroots group called the Second Amendment Sisters is organizing its own Armed Informed Mothers March in cities across the nation on Mother's Day. They don't a have a sugar daddy like the Bell Campaign, nor have they been given tens of millions of dollars of free publicity from the old media. Even so, they'll be rallying to point out the fact that guns in responsible hands save the lives of adults and children every day in America.

Below are excerpts from an article written last week by David Hardy, a Tuscon attorney who has been involved in some the Branch Davidian civil lawsuits. Hardy is a former high-ranking attorney in the Reagan Administration's Department of the Interior, and the author of a variety of scholarly articles on the Second Amendment and other topics. Hardy was one of the winning attorneys in the case of Printz & Mack v. United States, in which the Supreme Court declared part of the Brady Act to be unconstitutional. Hardy is a serious, successful lawyer, and has nothing in common with the type of characters who invent "conspiracies" in order to attract attention to themselves.

He found nearly 200 suspected gunshots, and had done the work necessary to verify that many of these were genuine. Understand that his idea of "verify" wasn't just to see the image. He wanted to find the shooters, as well, and to plot their movement from one flash location to another….

On the side (and I have no idea why he was analyzing this) he said it had been determined that almost the entire Waco operation, not only 2/28 but the siege, had been improperly financed from money that law enforcement was supposed to use only in the war on drugs. He said there was plenty of documentation here, showing flow of money. In the 2/28 videotape, the ATF agents are all trying on new uniforms, new equipment -- everything down to the computers in the media area of the raid HQ were bought out of money supposed to be used only in drug enforcement. He said that much or all of the siege had been financed the same way. There were written standards in the gov't for when the drug enforcement money could be used, and these could be shown to have been violated in black and white terms. A considerable amount of money had been, well, embezzled, to support the effort.

Carlos also told me, last month, that he'd seen FLIRs from nights before 4/19, and that it was apparent that the FLIR aircraft was being used to monitor the Davidians' water supply. The water was stored in those big plastic tanks at the rear of the building, and the coolness of the water inside showed up as a darker area. It was apparent that the water supply was shrinking, and by 4/19 was almost gone. He had heard the aircraft crew talking about it, and noting that the level was going down. So, essentially, they knew that thirst would force an end to the siege within a few days of 4/19.

While I was in his lab, he showed me some footage where it was clear, beyond any doubt, that a man was moving in the wreckage of the gym. The guy gets up from behind one pile of cover and races to another. In between, you see a very long flash that exists only for an instant -- much longer in terms of physical length than could be attributed to a gunshot. He said that was a bullet imaged in flight--he'd imaged them before, while flying past shooting ranges. (Shooters know that a bullet after firing is too hot to pick up in the hand, a product of being rammed down a barrel ahead of burning powder, and then of air resistance as it travels at Mach 2-3 thru the air. I'd never suspected that one would show up on IR.).

These scenes I saw with my own eyes, on his equipment--it was clear there was a person there. The prelim report I have here (he wanted to keep it secret for the time being, and faxed me a copy with instructions to keep my mouth shut. As will be set out below, I think I have been released from that promise.). To summarize:

11:26:13 to 11:26:27 additional return fire. If the dark objects behind the tank are indeed shooters, this may have pinned them down.

11:26:39 "One of the two unknown subjects is clearly visible exiting out of the hole in the front wall of the gym which the tank previously made. The unknown subject turns to the right into the courtyard."

11:28:04 to 11:28:14: gunfire from this person's approximate position, directed toward building.

11:33:51: gunfire between gym wall and swimming pool, into the structure. The infrared signature of these shots differs from those seen earlier in courtyard area.

11:34:32: one shot at unknown subject that is running and hiding between gym and swimming pool. [This may be the one he showed me]

11:43:36 to 11:59:03: gunshots from 2d story of building directed at tank (I believe he is here referring to the tank penetrating the front).

12:08:12: Unknown subject comes out of tank and shows up at 12:08:51 shooting at another unknown subject that appears at 12:08:34.

12:08:31 to 12:08:32: "A cluster of thermal anomalies appears at the corner of the gym."

12:08:34 and 12:08:44: unknown subject runs from the area where the thermal anomalies were seen, hops over rubble, and hides in gym.

12:10:41 to 12:11:15 numerous rounds shot from center of courtyard, directed at structure. Past this point, nothing of importance since fire overloads FLIR, but visible media and the soundtrack of FLIR indicates that gunfire did continue. He notes that events at 11:24:31, 11:24:35 and 11:28:14 may have involved more than one shot. . . .

Carlos also found indications that shots were being fired into the underground storm shelter after the fire began. On one of the regular media videotapes, you could see a long, bright flash going down into the pit, from in front of one of the armored vehicles. He said it was no sunlight flash, he'd imaged it on three different media tapes from slightly different angles. His best assessment was that it was the fuse on a pyrotechnic round. I saw this tape, also, with my own eyes. His view was that they were gassing the underground vault to pin Davidians in place during the fire. Carlos was about as credible as they come.

He'd done work for the FBI in the past, in fact, and often worked with gov't agencies. He had no particular ax to grind with regard to Waco: he once told me "the only thing that makes me mad about this is when I can see government officials making statements, and know for an absolute fact that they are lying."

He also told me that that the House Gov't Reform Committee had even more data than he did, that he knew only part of it and couldn't talk about it, but that it was really shocking. He said that the big problem the Committee seemed to see was the question of how they could get the information out, while at the same time preventing another Oklahoma City type reprisal --it was that shocking.

This conversation came shortly after Carlos' name had first been mentioned in the press, and the Committee rather played down his statements, saying they were based on visual video rather than FLIR (which was true only in small part). I asked about that--was the Committee getting cold feet over his evidence, or just playing their cards close to the chest.

He said it was the latter -- they just hadn't figured out how to let the info out yet. (He was then meeting with the majority on a weekly basis, to brief them on his latest results.).

I talked to him after the recreation, and his assessment was that it was pure junk -- the aircraft wasn't even at the right altitude, they didn't have the right procedures to verify that the sensor was functioning comparable to the one of 4/19, etc. The best thing that could be done with any resulting tape (and this is BEFORE the results were known) was to drop it in the wastecan. Whether it showed gunshots or did not, it'd be useless for proving anything, whether for the Davidians or the FBI.

I remember talking to him outside his office, after the first visit, standing there in the parking lot after dark. He'd mentioned that the guy with Infraspection Institute, who had analyzed the FLIR for 60 Minutes back in '95 or '96, and found FBI gunshots and shooters on it, had been terrified. In fact, he'd sent copies of the tape to Carlos and to several others in the IR field, with notes saying "If anything happens to me, you'll know why." (The same guy later called me, said he didn't want his name used, that "there are too many people already in their graves over this." I wrote him off as him being rather nervous.).

I asked Carlos, there in the parking lot, if he'd ever been fearful. He said only for a while, between the time he made his findings and the time he reported them to the Committee. Then he had been worried, because he was looking at clear evidence that would nail a LOT of FBI agents on perjury, and perhaps much worse. But once he toldothers of his results, he figured the cat was out of the bag.

Second Amendment Project Newsletter, May 10, 2000.