[Sent to members of the California Senate] Dear Senator, I urge you to vote ***AGAINST*** SB 23, Senator Perata's firearms magazine ban and expansion of the so-called "assault weapon" [1] ban. The bill is so broad and poorly constructed that it could turn hundreds of thousands of peaceable, lawful Californians who commit no overt act of any kind into felons. This unjust bill is further wrong in that it is both ineffective at reducing crime and unconstitutional. There are hundreds of thousands or perhaps even millions of lawful Californians who own firearms magazines with a capacity larger than 10 rounds. Since this includes magazines currently permitted under state and Federal law, there is no legal reason they should not. For example, many of the most common pistols used by police and owned by civilians for self-defense use magazines larger than 10 rounds. As noted in the Senate analysis of SB 23, the proposed Act would expand the definition of so-called "assault weapons." In doing so more honest gun owners could be criminalized, especially since SB 23 would ban guns that are permitted under current Federal law. As shown in various credible criminological studies, so-called "assault weapons" are almost never used in crime. See for example the 7/9/95 U.S. Department of Justice, Bureau of Justice Statistics (BJS) report "Guns Used in Crime" which has a number of flawed assumptions, methodological errors, and incorrect definitions but still manages to prove that so-called "assault weapons" are almost never used in crime: Assault weapons and offenders In the 1991 BJS Survey of State Inmates, about 8% of the inmates reported that they had owned a military-type weapon, such as an Uzi, AK-47, AR-15, or M-16. Less than 1% said that they carried such a weapon when they committed the incident for which they were incarcerated. A Virginia inmate survey conducted between November 1992 and May 1993 found similar results: About 10% of the adult inmates reported that they had ever possessed an assault rifle, but none had carried it at the scene of a crime. The quote above demonstrates several of the definitional errors in the BJS report. Commercial U.S. AR-15 and AK-47 rifles are not fully-automatic and are therefore not "military...assault rifles". Nonetheless, criminals don't use them. Under SB 23, criminals would continue to have illegal access to more traditional crime weapons and would remain essentially unaffected by this law. Research by the U.S. Department of Justice's National Institute of Justice consistently shows that more than 90% of criminals surveyed in federal prison do not obtain their firearms through legal means. [2] Laws such as these are therefore ineffective at addressing the criminal abuse of firearms. They serve only to criminalize the citizens they are purported to protect. Of greatest concern, these laws are also a direct affront to the Second Amendment of the U.S. Constitution. Extensive scholarship of this subject makes it clear that it protects the right of individuals to own arms of militia purpose. [3+] The 1982 U.S. Senate report on the Right to Keep and Bear Arms is prefaced: [5] To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them. -- Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights. The great object is that every man be armed . . . Everyone who is able may have a gun. -- Patrick Henry, in the Virginia Convention on the ratification of the Constitution. The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. -- James Madison, author of the Bill of Rights, in his Federalist Paper No. 26. There is a plethora of Constitutional research proving without a shadow of a doubt that the right to keep and bear militia arms is an individual *and* collective right. Enlightening, for example, are contemporary and post-Bill of Rights state constitutions: [6] Pennsylvania's 1776 constitution declares: "That the people have a right to bear arms for the defence of themselves and the state..." Vermont's constitution of 1777 similarly proclaims: "That the people have a right to bear arms for the defence of themselves and the State..." In [the] formative period of American history (1789-1845), there are a total of fifteen constitutions, adopted by ten states, and one independent nation (the Republic of Texas) [ State Constitutions: Connecticut (1818), Indiana (1816), Kentucky (1792 & 1799), Michigan (1835), Missouri (1820), Mississippi (1817), Ohio (1802), Pennsylvania (1790), Texas (1845), Vermont (1793). Also, see the Republic of Texas (1838). Although a foreign country, the Republic of Texas was settled and controlled by Americans, who wrote a constitution expressing sentiments similar to the U.S. Constitution.] that contain a "right to bear arms in defense of himself and the State", or some slight variant. Because these provisions specify "in defense of himself", it is unambiguous that the right protected in each case is individual. These must be considered as evidence for the individualist school, since the language used is similar to, and doubtless borrowed from, the Second Amendment. The [state] constitutions adopted after [the Bill of Rights] heavily support the individual rights position. Fifteen of the twenty constitutions adopted after the Constitution unambiguously protect an individual right; Rhode Island's constitution appears to protect an individual right; and of the remaining four, two are Tennessee's state constitutions, which Tennessee Supreme Court decisions and historical evidence clearly show were recognized as protecting an individual right.... Cramer also comments on the most recent U.S. Supreme Court decision to directly address a Second Amendment issue, U.S. v. Miller, as applied to the Roberti-Roos Assault Weapon Control Act: Many of the rifles banned by Roberti-Roos are semiautomatic versions of battle rifles in current or recent military use in a number of the world's armies, including our own. That such weapons have "some reasonable relationship to the preservation or efficiency of a well regulated militia" -- the test endorsed by U.S. v. Miller for whether private ownership of a weapon was protected by the Second Amendment -- would seem undisputable. In Miller, the Court was responding to an argument that ownership of a short-barreled shotgun was protected by the Second Amendment. Their question was whether a short barreled shotgun was useful as a militia weapon. In fact they are, as reflected by their military use through World War I and continuing today. No real defense was presented in the Miller case, so that well known contemporary fact was never raised. [7] However it is clear that semi-automatic versions of current military rifles, i.e. the subject of this ban, are ideally suited as militia weapons and would likely pass the Miller test. An individual rights interpretation is also reflected in recent Supreme Court rulings: "The people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. -- U.S. v. Verdugo-Urquidez, 1990 [8] If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.... Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. -- Printz v. U.S., 1997 [9] The March 30, 1999 U.S. District Court case from Texas, Emerson v. U.S. [10] contains a spirited and thorough defense of the Second Amendment as an individual right, along with other fundamental Constitutional rights. The decision cites much recent legal scholarship and judicial history and because of the issues it raises, it may well lead to a new Supreme Court case directly addressing the Second Amendment. There is far more scholarship addressing this issue in much greater detail than a brief letter can. Throughout it is clear that private ownership of effective, modern arms is considered a fundamental, individual right which can not be legislated away by state or Federal governments. This history should not be ignored; since the Constitution is the supreme law of the land, it may not be. I'd like to close this letter with two contrasting quotations: No freeman shall ever be debarred the use of arms. -- Thomas Jefferson's June 1776 draft of the Virginia Constitution To hell with the Constitution. -- Former California Assemblyman Mike Roos, February 1989, regarding his so-called "assault weapon" ban If you'll pardon the vulgarism, it may be worth reminding that Assembly Speaker Pro Tem Roos was forced out of office in disgrace along with Senate Speaker Pro Tem David Roberti and Attorney General John Van de Kamp, all promoters of the so-called "assault weapon" ban, by vigilant supporters of our Constitutional rights. We hope it is not necessary to take similar action in future, but remain committed and able to do so should the need arise. I urge you to support the Constitution you swore an oath to, and which a vast majority of Americans support. Vote no on SB 23. Support a repeal of these unconstitutional laws. Sincerely, Jeff Chan __ 1. As you are aware military authorities consider true Assault Rifles to be fully-automatic, light machine guns. The semi- automatic firearms subject here are not machine guns. In this sense, "semi-automatic assault weapon" is oxymoronic. "Assault weapon" was a deliberately obfuscative term chosen by anti- Constitutional rights activists to promote this confusion. 2. Wright, J., and Rossi, P., Weapons, crime, and violence in America: executive summary. Washington, DC: US Dept. of Justice, National Institute of Justice. 1981. Related version at: http://rkba.org/research/wright/armed-criminal.summary.html 3. Volokh, Eugene, Testimony Regarding the Second Amendment before the Senate Subcommittee on the Constitution, Sept. 25, 1998, reprinted as A Right of the People, California Political Review, Nov./Dec. 1998, p. 23. http://www.law.ucla.edu/faculty/volokh/beararms/testimon.ssi 4. Volokh, Eugene, UCLA Law School, Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm 5. U.S. Senate Subcommittee on the Constitution, The Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Congress, 97th Congress, 2nd Session, February 1982 http://rkba.org/research/1982rkba.txt 6. Cramer, Clayton, "For The Defense Of Themselves And The State": Second Amendment & Individual Rights. Later published as a book, the paper that was its genesis can be found as: http://rkba.org/research/cramer/themselves.draft.26apr91 A condensation of the book can be found at: http://www.claytoncramer.com/Ncutdown.pdf 7. U.S. v. Miller, complete new research is available at: http://rkba.org/research/miller/Miller.html 8. U.S. v. Verdugo-Urquidez http://rkba.org/judicial/verdugo-urquidez.txt 9. Printz v. U.S., Justice Thomas concurring http://supct.law.cornell.edu/supct/html/95-1478.ZC1.html 10. Emerson v. U.S., U.S. District Court, Texas, March 30, 1999 http://www.txnd.uscourts.gov/PDFs/emerson.pdf Further references available on request.