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GUN LAWS AND THE NEED FOR SELF-
DEFENSE (Part 2)

WEDNESDAY, APRIL 5, 1995

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CRIME,
COMMITTEE ON THE JUDICIARY,
Washington, DC.

STATEMENT OF ROBERT COTTROL, PROFESSOR OF LAW, RUTGERS SCHOOL OF LAW, CAMDEN, NJ, ACCOMPANIED BY NICHOLAS J. JOHNSON, ASSOCIATE PROFESSOR OF LAW, FORDHAM UNIVERSITY SCHOOL OF LAW, NEW YORK, NY

Mr. COTTROL. Thank you, Mr. Chairman.

Mr. McCOLLUM. The light needs to be turned on, the switch right there. There you go. Thank you.

Mr. COTTROL. Thank you, Mr. Chairman.

Would the record also reflect that my statement was coauthored by Raymond T. Diamond of Tulane Law School, who is not present, and Prof. Nicholas Johnson of the Fordham Law School, who is present?

Mr. MCCOLLUM. The record will so reflect.

Mr. COTTROL. Thank you.

Mr. Chairman, members of the committee, we are grateful for this opportunity to address the subcommittee on a matter of critical concern to the Nation. Our testimony is uncompensated and we are not representing any group. We are a diverse group of scholars with views that range across the contemporary American political spectrum. We come here as students of law and public policy, concerned that a constitutional principle older than the Republic itself is being eroded and, perhaps worse yet trivialized by a deadly combination of reasonable and unreasonable fears, misinformation, cultural bigotry, and intellectual neglect. We are concerned not only with the evisceration of this right but also that what is now happening with one right may spread and, ultimately, truncate all of the rights that have been part of the unique heritage of our Nation.

We speak, of course, of the right to keep and bear arms, a right that the framers of both the 2d and the 14th amendments intended


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to protect. It is a right that is often little understood. Some have argued for a trivial view of the right, stating that it protects the right to have firearms for sporting purposes, target shooting, recreational hunting, and similar pursuits. But as worthy as such activities are and despite the fact that they are enjoyed by tens of millions of decent law-abiding citizens throughout the Nation, to assume that a fundamental right was recognized by the Constitution simply to protect a hobby is to trivialize both the Constitution and the very serious legal and political thought that went into the drafting of that document.

Others have seized upon the militia clause of the second amendment to argue that the amendment does not, despite its language, protect the right of the people at all. Instead, they claim it was simply designed to protect the right of States to maintain militias. This is argued by all too many in public life despite the fact that it runs counter to overwhelming textual and historical evidence.

We would contend, instead that the right to arms is something critical to say concerning the relationship between the citizen an the State. For most of human history in most of the nations of the world, the individual has all too often been a helpless dependent of the State, dependent on the State’s benevolence and, indeed, competence for his physical survival. The notion of a right to arms ~ says something very different. It says that the individual is not simply a helpless bystander in the difficult endangering task of ensuring his or her own physical safety. Instead, the citizen is an active participant, an equal partner with the State, in ensuring not only her own safety, but that of her community as well.

This is an important concept. It takes the individual from servile dependency on the State for survival to the status of participating citizen capable of making intelligent choices in defense of one’s life and, ultimately, one’s freedom. It is a concept that recognizes that the ultimate civil right is the right to defend one’s own life; that without that right, all other rights are meaningless, and that without the means of self-defense, that the right to self-defense is but an empty promise.

Ultimately, the right to arms is about something more. It is a recognition of the dangers that are posed by giving the State a monopoly of force. We speak too little of this danger in modern-day America. That is understandable. We are fortunate to live in a democratic and liberal Nation, blessed with an essentially humane Government. The idea of governmental tyranny and the need to resist it seems remote. But history should give us pause. Who at the beginning of this century could have envisioned a homicidal maniac like Hitler ruling Germany a nation renowned for its contributions to science, culture, and scholarship? Could the horrors of the Nazis Holocaust have been lessened had there existed a more robust tradition of private firearms ownership in occupied Europe? Might resistance have been more effective? What if the heroic struggles of the people of the Warsaw ghetto had been magnified a thousandfold in hundreds of cities, towns, and villages across Nazis-occupied Europe, aided by a more common tradition of arms ownership? Might that have helped alleviate one of the darkest blots on human history? It is a question that we should ask over and over again with respect to this bloody century, where we


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have seen the devastating consequences of unchecked State monopolies of force and helpless civilian populations in Hitler’s Germany, Stalin’s Russia, Mao’s China, Pol Pots Cambodia.

That we do not connect these issues to the debate over arms and rights is disturbing. At a time when Steven Spielberg’s film “Schindler’s List” is justifiably considered one of the most significant and moving statements on the human condition, at a time when we have witnessed the brutal extermination of hundreds of thousands of people in a central African nation few of us had previously heard of, Rwanda, and as we sadly realize that this has been a century of holocausts with scores of millions murdered by their own Government, not to at least examine the issue and ask the questions concerning the desirability of the State’s having a monopoly of force must stand as an incredible example of intellectual cowardice.

We should heed the words of former Vice President Hubert Humphrey, that exemplar of the optimism and faith in the people that was once the hallmark of post-War American liberalism. He said:

“Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizen to keep and bear arms. This is not to say that firearms should not be very carefully used and that definite rules of precaution should not be taught and enforced. But the right of the citizen to bear arms is just one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.”

But this is America. Need we have such concerns? True, we have been spared rule by dictators, but state tyranny can come in other forms. It can come when Government refuses to protect unpopular groups, people who are disfavored because of their political or religious beliefs, or the origins of their ancestors, or the color of this skin. Our past has not been free from this brand of State tyranny. In light of that history, how can we fail to rigorously question those who would force upon us a total reliance on the State for defense?

Nor should our discussion of freedom and the right to arms be limited to foreign and historical examples. The freedom of decent, law-abiding citizens throughout our Nation, but especially in our increasingly dangerous innercities, is constantly limited by criminal predators. And, yet, the move to limit the right to arms is most intense in such communities, as public officials attempt in vain to disarm criminal predators by denying the means of self-defense to entire communities, leaving citizens to the mercy of well-armed criminals and the police departments that are often powerless to protect those most at risk in our society.

This has led to another kind of curtailment of freedom. Consider the recent initiatives to require tenants in public housing to agree to allow their apartments to be searched as a condition for keeping or acquiring apartments. In too many communities, police officials for decades, for justifiable and far too frequently unjustifiable reasons, have failed to protect citizens in some of the most dangerous public housing projects. When the situation got sufficiently desperate tenants were prohibited from owning firearms for their own defense. Finally, the demand came; surrender


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your freedom to privacy in your home, a guarantee promised in the fourth amendment. The message could not be clearer: a people incapable of protecting themselves will lose their status as a free people and will become either servile dependents of the State or of the criminal predators who are their de facto rulers.

The right to arms, thus, stands as no 18th century anachronism that we may safely leave with other now irrelevant historical relics. Instead, it is as vital today as it was when James Madison extolled the Americans’ “advantage of being armed” more than two centuries ago.

But we are told that no one wants to destroy the right to arms, that the concern is only with a small group of “bad guns,” the “weapons of choice” of criminals. But, sadly, there are no boundaries to the weapons that criminals prefer. Every gun has its unique dangers. The bolt-action rifle can fire the most powerful cartridges. The handgun is concealable, the shotgun the most deadly at close range. The semiautomatic can fire rapidly.

Indeed, over the last three decades, we have been treated to ever-changing definitions of bad guns. In the sixties we were told that military surplus bolt-action rifles, utilizing 19th century technology, were the bad guns. In the seventies we were then told that handguns were the enemy. Later we were told it was only inexpensive ones, the so-called Saturday Night Special. More recently, we have been assured that semiautomatic rifles are the problem. But, perhaps because there are so many semiautomatic rifles in public hands, we’ve been told not all semiautomatic rifles, only those with bayonet lugs, as if bayonet charges by drug pushers are a major crime concern in modern America. Or we are told only semiautomatic rifles with pistol grips. That has even less cogency. Bayonets, after all, can kill, though we suspect the incidence of such is rare, indeed, in America at the end of the 20th century. But pistol grips? Has anyone in human history been killed by a pistol grip? Obviously, the search for bad guns can continue ad infinitum and ad absurdum. The rights of peaceable citizens become more and more tenuous as every shift in criminal preference, real or imagined, becomes an excuse for those seeking wholesale prohibitions.

This has had tragic consequences. For it is the realization by millions of citizens who value the right to arms that they are faced not with a gun control movement, but, instead, a gun prohibition movement that has led to the bitter nature of our debate over gun control. It has also impeded our ability to find common ground on what should be an area of common concern: how to find the best means of doing the limited amount that we can to keep firearms out of the hands of criminals, the mentally disturbed, the chronically violent.

Finally, we must realize that our debate over arms and rights is driven by a tragic sociocultural meltdown in many sectors of our society. The evidence of this is apparent, indeed, inescapable. Within the last year, we have seen the murder of an 11-year-old boy in Chicago, the murdered child himself a suspect in other murders. Also within the last year, Rosa Parks, the mother of the civil rights movement, was mugged and injured in Detroit.

The tragedy of crime in the inner city is a threat to both the lives and liberties of all Americans. It is a product of our legacy of rac-


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ism and neglect, now further fueled by an inconsolable sense of hopelessness on the part of all too many young people. This problem will not evaporate with quick fixes like wholesale gun prohibition. It will not improve as a result of political posturing. it will require, instead, our renewed commitment to repair the moral foundations of a peaceable society. if we do this, we will find no need to ban guns. If we fail, our guns will not save us.

Thank you, Mr. Chairman.

[The prepared statement of Messrs. Cottrol, Diamond, and Johnson follow:]


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