NORTHERN KENTUCKY LAW REVIEW Volume 10 1982 Number 1 SECOND AMENDMENT SYMPOSIUM: RIGHTS IN CONFLICT IN THE 1980'S' ARTICLES THE HANDGUN CRIME CONTROL ACT OF 1981 ..................... 1 Senator Edward M. Kennedy To KEEP AND BEAR THEI PRIVATE ARMS: THE ADOPTION OF THE SEC- OND AMENDMENT, 1787-1791 ................................... 13 Stephen P. Halbrook MANUFACTURERS' AND SUPPLIERS' LIALITY TO HANDGUN VICTIMS... 41 Windle Turley To PRESERVE LmERTY - A LOOK AT THE RIGHT TO KEEP AND BEAR A RM S ... .... ... .... .. ..... .... ..... .. ...... .... .... .... ... .... 6 3 Richard E. Gardiner,National Rifle Association HANDGUN CONTROL BY LOCAL GOVERNMENT ...................... 97 Martin C. Ashman, Attorney for Morton Grove, Ill. GUN OWNERSHW: A CONSTITUTIONAL RIGHT ...................... 113 Alan M. Gottlieb, Second Amendment Foundation GUNS, CRIME AND THE NEGLIGENT GUN OWNER ................... 141 Samuel Fields, Foundationfor Handgun Education SECOND AMENDMENT SURVEY ................................... 155 DEDICATION Implicit in a discussion of the second amendment, or any topic for that matter, is the recognition of the importance of the first amendment: the primary prerequisite to our participation in any discussion is the realization that we have the right to discuss. As we read these articles written by our honored contributors, let us rededicate ourselves, as lawyers and as citizens, to the vigorous protection of our most fundamental and necessary right - the right to disagree. This issue would not have been possible without the enormous and continuously excellent contributions by the members, editors and advisors of the Northern Kentucky Law Review. Their re- search, corrections, editing, suggestions, insights and encourage- ment transformed an idea into a successful project. They should all be proud of their efforts. In addition, I would like to thank my husband, Jim Roberts, for his constant encouragement during this year and throughout this project, with special thanks for his help with our daughter, Kerry, whose birth coincided with that of this issue. Cynthia Millen December, 1982 THE HANDGUN CRIME CONTROL ACT OF 1981 by Senator Edward M. Kennedy* On March 31, 1981, in a hotel ballroom, the President of the United States spoke to the members of the Building Trades. In that speech the President warned of the "violent crime that has surged-making neighborhood streets unsafe and families fearful in their homes."' President Reagan then went out from that meet- ing to be shot on the unsafe streets of our Nation's Capital. A two- second fusillade of bullets from a cheap handgun sent a too famil- iar fear into every home across the land. Before the latest flash of gunfire fades from our conscience into the darker pages of our history, we must ask ourselves why we abide the continuing carnage of the gun and the bullet, the mur- derer and the assassin. This time, along with our fears and our tears and our shared feelings, must come a new sense of public purpose, a new national commitment to deal with a public ques- tion that has haunted us for nearly two decades-the question of handgun control. With the introduction of the Handgun Crime Control Act of 1981,2 we launch a new effort in our Congress to end the arms race in our neighborhoods and streets that nearly took the President's life,' and that each year takes the lives of at least ten thousand * (D) Massachusetts. A.B., Harvard College, 1950; International Law School, The Hague, 1958; LL.B., University of Virginia Law School, 1959. Member of the Labor and Human Resources, Judiciary, and Joint Economic Committees. This article, slightly modified, was taken from a speech delivered on the floor of the United States Senate on April 9, 1981, where Senator Edward M. Kennedy introduced the Handgun Crime Control Act of 1981. Our gratitude is extended to Associate Editor Steve 0. Thornton who was responsible for transforming this speech into proper law review form, a task involving many hours of research. 1. President's Message to the Building and Construction Trades Department, AFL-CIO, 17 WEEKLv COMP. PREs. Doc. 368 (Mar. 30, 1981). 2. S.974, 97th Cong., 1st Sess., 127 CoNG. Rac. 3806-16 (1981). 3. President Ronald Reagan was wounded in the chest March 30, 1981, in an assassina- tion attempt. The attack came at about 2:25 p.m. as he was exiting the Washington Hilton Hotel after addressing the AFL-CIO Building and Construction Trades Department. John W. Hinkley, Jr., who was standing with reporters outside the hotel, fired six shots from a .22-caliber pistol. One of the bullets hit President Reagan in the chest. Three other persons were also wounded, including the Press Secretary to the President, James S. Brady, who was the most severely injured of that group with a bullet wound in his brain. Others injured included Secret Service Agent Timothy J. McCarthy and District of Columbia po- liceman Thomas K. Delahanty. 37 CONG. Q. ALMANAC 7 (1981); N.Y. Times, Apr. 1, 1981, § A, at 1, 11. 2 NORTHERN KENTUCKY LAW REVIEW [Vol. 10/1 Americans4 and wounds or threatens hundreds of thousands more.' By this time tomorrow, twenty-nine more Americans will have died in handgun murders, and hundreds more will have been assaulted in handgun crimes.' Every day the relentless toll climbs higher. Inaction is inexcusable. It is time for Congress to stand up to the gun lobby and face up to its responsibility to deal with the epidemic of handgun violence that plagues the Nation.8 The Handgun Crime Control Act of 1981 is narrowly and care- fully drafted to achieve its goal. The reasonable steps it seeks will not impair the legitimate rights of hunters and sportsmen, or pre- vent law-abiding citizens from acquiring guns for self-defense.' 4. In 1979, the Federal Bureau of Investigation, Uniform Crime Reports for the United States, reported 13,040 murders and non-negligent homicides effectuated with the use of a firearm. The following data reflects the number of murders and non-negligent homicides perpetrated with the use of a firearm for the corresponding years: 1971, 10,680; 1972, 10,449; 1973, 11,301; 1974, 12,483; 1975, 12,117; 1976, 10,627; 1977, 11,360; and 1978, 11,976. U.S. DEPT. OF JUSTICE, FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED STATES 114 (1971); 118 (1972); 8 (1973); 18 (1974); 18 (1975); 10 (1976); 11 (1977); 12 (1978); 11 (1979) [hereinafter cited as UNIFORM CRIME REPORTS). 5. In 1979, the Federal Bureau of Investigation, Uniform Crime Reports for the United States, recorded 147,360 aggravated assaults which were perpetrated with the use of a fire- arm. The following data reflects the number of aggravated assaults effectuated with the use of a firearm for the corresponding years: 1970, 69,060; 1971, 73,278; 1972, 80,326; 1973, 91,820; 1974, 102,471; 1975, 109,043; 1976, 119,537; 1977, 121,269; and 1978, 132,751. UNI- FORM CRIME REPORTS, supra note 4, at 12 (1970), 12 (1971), 10 (1972), 11 (1973), 20 (1974), 20 (1975), 13 (1976), 21 (1977), 21 (1978), and 20 (1979). 6. With 13,040 murders and nonnegligent homicides committed each year through the use of a handgun, an average of over 35 handgun deaths occur each day. UNIFORM CRIME RE- POETS, supra note 4, at 11 (1979). With 147,360 aggravated assaults occurring each year through the use of a firearm, an average of over 400 handgun assaults occur each day. UNIFORM CRIME REPORTS, supra note 4, at 20 (1979). 7. Numerous measures regulating the control of handguns were introduced during the 1981 legislature year, but none reached the floor in either chamber. For years, the powerful National Rifle Association, a 1.8 million member special interest group, has been successful in preventing any significant congressional action on handgun legislation. 37 CONG. Q. ALMA- NAC 420 (1981). 8. Several members of Congress have offered unchecked support for the Handgun Crime Control Act of 1981. For example, Senator Daniel P. Moynihan stated: This is not a time for florid rhetoric, but for seriousness and determination. The tragic events of Monday, March 30, [President Reagan's shooting] powerfully rein- force this Nation's awareness of a simple, awful fact: Dangerous weapons too easily come into the hands of people who for whatever reason employ them to attack other people . .. To the extent that reasonable legislation can reduce the likelihood of more such incidents, such legislation deserves the support of every American. It has mine. S. 974, 97th Cong., 1st Sess., 127 CONG. REC. 3814 (1981) (Statement by Sen. Moynihan). 9. S. 974, 97th Cong., 1st Sess., 127 CONG. REc. 3806-16 (1981) (Statements by Sen. Ken- nedy, Sen. Moynihan, and Sen. Pell). .19821 HANDGUN CONTROL ACT This legislation offers the best and perhaps the only hope to end the arms race on our city streets and reduce the unacceptable rate of handgun crime that brings sudden death to thousands of inno- cent Americans every year. While it is true that this legislation is opposed by a powerful special interest group whose treasury seems to be overflowing,10 our most serious opponent remains the ill-informed citizen. Confu- sion about the ramifications of gun control legislation is rampant. Legislators, perhaps, are most guilty of adding to this confusion by repeating the often misleading political rhetoric espoused by the powerful and wealthy lobbies opposing gun control. In all candor, however, this is not an easy issue for any officeholder or candidate. For example, in 1980, in the Presidential primaries, I constantly met union members-men and women whose interests I have sought to represent throughout my career in public life-who op- posed me because they thought I favored confiscation of hunting rifles, long guns, and sporting pistols.