[*] Copyright 1996 by Roland Docal. Return to text.

[**] The author wishes to express his gratitude to Lori Docal for her encouragement and helpful insights. Return to text.

[1] THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 298 (3d ed. 1898). Return to text.

[2] WALL STREET (Twentieth Century Fox Film Corp. 1987). Return to text.

[3] Id. Return to text.

[4] Garry James, We Shoot the Million $$ Luger, 38 GUNS & AMMO MAGAZINE 30 (1994). Indeed, "[t]he rarity and historical importance of this pistol to collectors makes it literally priceless." Id. at 31 (quoting CHARLES KENYON, JR., LUGERS AT RANDOM). Return to text.

[5] Id. at 30. Return to text.

[6] Interview with Harry L. Coe, IV, in Tampa, Fla. (June 15, 1995). Return to text.

[7] Id. Return to text.

[8] Id. (personally valued by Mr. Coe); Telephone Interview with Wain Roberts, President, Wain Roberts Firearms, Inc. (May 8, 1996) (Mr. Roberts is a self-described former pro-gun lobbyist and a licensed firearms dealer through Wain Roberts Firearms, Inc.). Return to text.

[9] Id. Return to text.

[10] The Second Amendment to the Constitution of the United States proclaims that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. Return to text.

[11] The Fifth Amendment states that "private property [shall not] be taken for public use, without just compensation." U.S. CONST. amend. V. Return to text.

[12] The Ninth Amendment asserts that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST. amend. IX. Return to text.

[13] This Comment, unlike the majority of articles addressing the Second Amendment, does not directly address gun-related violence. Rather, the focus of this Comment is on firearms collecting as an investment vehicle and hobby. The Comment's primary concerns are with basic American values—wealth preservation and the pursuit of happiness. Undoubtedly, the focus of federal gun control legislation has been to reduce gun-related violence. While this is an admirable goal, congressional methodologies improperly deprive law-abiding citizens, including gun collectors, of their fundamental constitutional rights. Return to text.

[14] See discussion infra part VIII. Return to text.

[15] 2 WILLIAM BLACKSTONE, COMMENTARIES 408-10 (St. George Tucker ed.) (1803) ("In a land of liberty, it is extremely dangerous to make a distinct order of the profession of arms."). Return to text.

[16] Id. Return to text.

[17] 1 THE NEW ENCYCLOPAEDIA BRITANNICA 259 (Robert McHenry ed., 15th ed. 1992) [hereinafter ENCYCLOPAEDIA BRITANNICA]. Return to text.

[18] BLACKSTONE, supra note 15, at 410. Return to text.

[19] David E. Vandercoy, The History of the Second Amendment, 28 VAL. U. L. REV. 1007, 1010 (1994); cf. Robert A. O'Hare, Jr. & Jorge Pedreira, Note, An Uncertain Right: The Second Amendment and the Assault Weapon Legislation Controversy, 66 ST. JOHN'S L. REV. 179, 185 n.22 (1992) (indicating that the affirmative requirement to own guns was carried over from England to colonial Georgia, Massachusetts, and Virginia). Return to text.

[20] Vandercoy, supra note 19, at 1011. Return to text.

[21] Id. Return to text.

[22] Id. at 1016; 3 ENCYCLOPAEDIA BRITANNICA, supra note 17, at 113. Return to text.

[23] Vandercoy, supra note 19, at 1016; BLACKSTONE, supra note 15, at 412-14. Return to text.

[24] Vandercoy, supra note 19, at 1016. Return to text.

[25] Id. Return to text.

[26] Id. Return to text.

[27] 6 ENCYCLOPAEDIA BRITANNICA, supra note 17, at 482-83. Return to text.

[28] Vandercoy, supra note 19, at 1016. Return to text.

[29] Id. Return to text.

[30] Id. at 1017. Return to text.

[31] Id. Return to text.

[32] 6 ENCYCLOPAEDIA BRITANNICA, supra note 17, at 482-83; 10 ENCYCLOPAEDIA BRITANNICA, supra note 17, at 854-55. Return to text.

[33] Vandercoy, supra note 19, at 1017. Return to text.

[34] Id. Return to text.

[35] Id.; see also David B. Kopel, It Isn't About Duck Hunting: The British Origins of the Right to Arms, 93 MICH. L. REV. 1333 (1995) (reviewing JOYCE L. MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (1994)) (noting that the "British Bill of Rights includ[ed] an explicit right to arms."). Return to text.

[36] Vandercoy, supra note 19, at 1019. Return to text.

[37] BLACKSTONE, supra note 15, at 123. Return to text.

[38] Id. Return to text.

[39] Id. Return to text.

[40] Id. at 143-44, 144 n.41; see also Kopel, supra note 35, at 1351 (noting that "[t]he right to arms became . . . commonly regarded as sacrosanct"). Return to text.

[41] BLACKSTONE, supra note 15, at 140-41. Return to text.

[42] 5 ENCYCLOPAEDIA BRITANNICA, supra note 17, at 718-19; see generally THE POLITICAL WORKS OF JAMES HARRINGTON (John G.A. Pocock ed., 1977). Return to text.

[43] Vandercoy, supra note 19, at 1020-21 (discussing the views of James Harrington); see also Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 647 (1989) (restating Harrington's thesis that the "independent yeoman should also bear arms"). Return to text.

[44] Levinson, supra note 43, at 647. Return to text.

[45] Vandercoy, supra note 19, at 1021. Return to text.

[46] Id. Henry Neville's theory regarding arms control in societies dominated by despotic forms of government proved to be accurate. For example:

Four days after Hitler's triumphant Anschluss of Austria in March 1938, the Nazis finally enacted their own firearms laws. Additional controls were layered on the 1928 Weimar law: Persons under eighteen were forbidden to buy firearms or ammunition; a special permit was introduced for handguns; Jews were barred from businesses involving firearms; Nazi officials were exempted from the firearms permit system; silencers were outlawed; twenty-two caliber cartridges with hollow points were banned; and firearms which could fold or break down "beyond the common limits of hunting and sporting activities" became illegal.
On November 9, 1938 and into the next morning, the Nazis unleashed a nationwide race riot. Mobs inspired by the government attacked Jews in their homes, looted Jewish businesses, and burned synagogues, with no interference from the police. The riot became known as "Kristallnacht" ("night of broken glass"). On November 11, Hitler issued a decree forbidding Jews to possess firearms, knives, or truncheons under any circumstances, and to surrender them immediately. Nazi mass murders of Jews began [less than three years later]. David B. Kopel, Symposium: Guns at Home, Guns on the Street: An International Perspective Book Review, 15 N.Y.L. SCH. J. INT'L & COMP. L. 355, 361-62 (1995) (reviewing JAY SIMKIN ET AL., LETHAL LAWS (1994)).
The Nazis gave America the Volkswagen and the idea for the interstate highway system. Did Hitler give us the Gun Control Act of 1968 as well?
And if he did? That was 25 years ago. Does it still matter? It very much matters to Aaron Zelman . . . whose research demonstrates that the GCA of 1968 has very much in common with the Nazi Weapons Law of 18 March, 1938. This week marks the 50th anniversary of the Warsaw Ghetto uprising. Zelman thinks there's no better time to recall how the Nazis used gun control laws to disarm Jews. Jim Strang, Hitler's Influence on U.S. Gun Law, THE PLAIN DEALER, Apr. 18, 1993, at C1. Return to text.

[47] Abraham Lincoln, Address at Gettysburg Field (Nov. 19, 1863), reprinted in 2 Carl Sandburg, ABRAHAM LINCOLN: THE WAR YEARS 469 (1939). Return to text.

[48] Vandercoy, supra note 19, at 1021 (arguing "that by arming the people, democracies could obtain incomparable advantage over neighboring aristocracies because the aristocracies could not arm their populace for fear they would seize the government"). Return to text.

[49] Id. at 1020-22; see also JOYCE L. MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (1994) (describing the evolution of the English right to arms into the American Second Amendment); O'Hare & Pedreira, supra note 19, at 185 (noting that an American "tendency to adopt the basic precepts of English law . . . resulted in the approval of individual gun ownership"). Return to text.

[50] Levinson, supra note 43, at 647; see also Kopel, supra note 35, at 1333 (stating that "as long as Americans have been discussing guns and government restrictions on guns, they have been looking to the example set by Great Britain"). Return to text.

[51] Vandercoy, supra note 19, at 1022 n.122. Return to text.

[52] Id. at 1022. Return to text.

[53] THE FEDERALIST No. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961). Return to text.

[54] See id. Return to text.

[55] See Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. REV. 57, 64 n.17 (1995). Return to text.

[56] See LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 124 (Walter H. Bennett ed., 1978). Return to text.

[57] Id. Return to text.

[58] Vandercoy, supra note 19, at 1022 n.123. Return to text.

[59] Id. at 1022 (noting the Framers' objections to the absence of safeguards against peacetime standing armies); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 299 n.6 (2d ed. 1988) (indicating that the Framers' sole concern was "to prevent . . . the establishment of a standing national army and the consequent destruction of local autonomy"). Return to text.

[60] Vandercoy, supra note 19, at 1022. Return to text.

[61] Id. Return to text.

[62] See U.S. CONST. art. I, § 8, cl. 11. Return to text.

[63] U.S. CONST. art. II, § 2, cl. 1. Return to text.

[64] U.S. CONST. art. I, § 2, cl. 1; U.S. CONST. amend. XVII, § 1. Return to text.

[65] See U.S. CONST. art. I, § 8. Return to text.

[66] Vandercoy, supra note 19, at 1038; see also David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551, 551-52 (1991); Kopel, supra note 35, at 1353 ("Congress intended the Second Amendment to recognize an individual right of all free Americans to possess firearms. Congress designed the Amendment to permit a militia drawn from the whole body of the people, thus ensuring that a uniformed standing army would not be the sole defense of the nation.") (providing extensive authority in support of this proposition). Return to text.

[67] Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 RUTGERS L.J. 1, 3 (1992) (noting that "basic beliefs about [the] Constitution and the role of government" would have to be abandoned if the existence of a Ninth Amendment-based right to arms is denied). Return to text.

[68] John Choon Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 970-72 (1993) ("[T]he Ninth Amendment declares a constitutional structure designed to protect the people from an abusive central government by securing majoritarian rights . . . . Of course, this does not mean that the Ninth Amendment protects only majoritarian rights. Certainly the term 'right' as employed in 1791 also referred to individual rights."). Return to text.

[69] Id. at 983 ("The Framers deemed these individual rights important enough to enshrine explicitly in the Bill of Rights. They included the Ninth Amendment primarily to protect the inalienable rights not included in the Bill of Rights' enumeration . . . ."). Return to text.

[70] Johnson, supra note 67, at 7. Return to text.

[71] Id. at 4. Return to text.

[72] Id. at 8. Return to text.

[73] Id. Return to text.

[74] Id. at 6. Return to text.

[75] U.S. CONST. amend. IX. Return to text.

[76] Johnson, supra note 67, at 68 ("[T]he right to defense of self cannot be surrendered; it is indefeasible."); Yoo, supra note 68, at 985 ("These rights are retained precisely because the people could not surrender them to the government, even if they so desired."). Return to text.

[77] Johnson, supra note 67, at 7, 11. Johnson notes that

[o]wnership of firearms was commonplace during the revolutionary period . . . . Once we recognize . . . and appreciate that for many Americans, firearms still are commonplace, useful tools with unmatched utility for self-defense, we might view possession of arms for individual defense to be as basic as the right to choose a heavy coat against the cold.
Id. at 4-5. Return to text.

[78] Yoo, supra note 68, at 979.

The attached phrase, "to deny or disparage," confirms that the Ninth protects rights outside the Constitution's four corners. The very meaning of the words assumes the existence of rights to be protected from denial or disparagement. Moreover, "disparage" implies that the rights left unenumerated operate of their own force; they are not defined residually by the interpretation of the government's enumerated powers.
Id. Return to text.

[79] See discussion infra part VIII. Return to text.

[80] Johnson has recognized that the individual right to bear arms, anchored in the Constitution by the Ninth Amendment, is essential to American liberty.

A practical rationale supporting disarmament is that some citizens cannot be trusted to act wisely or prudently in their use of firearms. This justification, though, raises the related question: can such a population be entrusted to make informed democratic decisions? Once we reach the stage where we advocate individual disarmament, we may have departed substantially from the framers' design—so substantially that, perhaps, we will no longer seriously be able to contend that government is either controlled by and serves citizens in a way that is responsive and accountable, or that citizens possess the capacity to meet their responsibility as masters of their agents in government.
Johnson, supra note 67, at 37. Return to text.

[81] See discussion supra part II.B. Return to text.

[82] U.S. CONST. amend. II.; see also discussion supra part II. Return to text.

[83] See, e.g., United States v. Cruikshank, 92 U.S. 542, 551 (1875) (recognizing that "[t]he government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people."). Return to text.

[84] U.S. CONST. art. I, § 8. Return to text.

[85] See, e.g., James M. Maloney, Note, Shooting for an Omnipotent Congress: The Constitutionality of Federal Regulation of Intrastate Firearms Possession, 62 FORDHAM L. REV. 1795, 1796 (1994) (mentioning the recent use of the Commerce Clause to expand federal jurisdiction). Return to text.

[86] See, e.g., Stephen P. Halbrook, Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right To Keep and Bear Arms, 62 Tenn. L. Rev. 597, 601 (1995) (citing 65 CONG. REC. 3946 (1924)).

Senator John K. Shields, a Tennessee Democrat, introduced a bill in the United States Congress designed to prohibit the shipment of pistols in interstate commerce. With racism again at the forefront, Shields inserted into the record a report in support of his bill: "Can not we, the dominant race, upon whom depends the enforcement of the law, so enforce the law that we will prevent the colored people from preying upon each other?"
Id. Return to text.

[87] U.S. CONST. art. I, § 8. Return to text.

[88] Kopel, supra note 35, at 390 (noting that "America's first major gun control law, the National Firearms Act of 1934, was a direct result of the violence engendered by alcohol prohibition"). Return to text.

[89] The term "sawed-off," while not used in the statute, is a popular expression used to abbreviate the National Firearms Act's more precise and extensive definition:

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length . . . .
National Firearms Act of 1934, 26 U.S.C. § 5845(a) (1994); see also United States v. Lopez, 2 F.3d 1342, 1348 (5th Cir. 1993), aff'd, 115 S. Ct. 1624 (1995) (noting that the National Firearms Act applies to "machine guns, 'sawed-off' shotguns and rifles, [and] silencers"). Return to text.

[90] National Firearms Act of 1934, 26 U.S.C. §§ 5801-72 (1994). Return to text.

[91] Id. § 5802. Return to text.

[92] Federal Firearms Act of 1938, formerly 15 U.S.C. §§ 901-10 (repealed in 1968). Return to text.

[93] Id. § 902(a). Return to text.

[94] Id. Return to text.

[95] Id. § 902(b). Return to text.

[96] Id. § 903(d). Return to text.

[97] Id. § 902(g). Return to text.

[98] Id. § 902(i). Return to text.

[99] Id. § 902(d). Return to text.

[100] Id. § 902(e). Return to text.

[101] Id. § 902(f). Return to text.

[102] 114 CONG. REC. 14773 (1968). Return to text.

[103] Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 921-28 (1994). The Act reincorporated almost all of the provisions of the Federal Firearms Act of 1938 and banned the transfer of firearms (other than rifles and shotguns by licensed dealers or manufacturers) to persons under the age of 21 or unlicensed residents of other states. Id. § 922(b). Under the Act, licensed dealers and manufacturers were forbidden to transact in "destructive devices" (such as bombs or missiles), machine guns, "sawed-off" shotguns, or "sawed-off" rifles with the general public. Id. This legislation also prohibited any business from importing, manufacturing, or dealing in firearms or ammunition without a federal license. Id. § 922(a)(1). Similarly, the Act prohibited licensed dealers or manufacturers from selling firearms or ammunition to felons, regardless of whether the transaction had a nexus to interstate commerce. See id. § 922(d)(1). The federal regulation of firearms dealers and manufacturers was needed to control the flow of firearms and ammunition affecting interstate commerce at the national level. United States v. Nelson, 458 F.2d 556, 559 (5th Cir. 1972). Return to text.

[104] 114 CONG. REC. 14773 (1968). Return to text.

[105] Gun Control Act of 1968, 18 U.S.C. §§ 921-30 (1994). This legislation made minor modifications to the Omnibus Crime Control and Safe Streets Act. The Gun Control Act added the following to the list of individuals prohibited from transacting in firearms through interstate commerce channels: unlawful users of federally regulated narcotics, those adjudicated as suffering from mental illness, illegal aliens, the dishonorably discharged, and such individuals as may have renounced their United States citizenship. Id. § 922(d). The Act also restricted the types of ammunition that could be used with firearms restricted under prior legislation and required the notification of local law enforcement officials prior to the delivery or shipment of firearms in a transaction involving a licensed firearms dealer and an unlicensed purchaser who either fails to appear in person on the licensee's premises or does not furnish a sworn statement of eligibility to acquire firearms. Id. § 922(a). Licensed dealers were prohibited from selling rifles, shotguns, or the ammunition therefor, to persons under the age of eighteen and from selling handguns or handgun ammunition to persons under the age of twenty-one. Id. § 922(b)(1). Return to text.

[106] Id. § 924(c)(1). Return to text.

[107] Id. § 921(a)(13). The Gun Control Act amended the National Firearms Act by providing exceptions from registration requirements for antique firearms and unserviceable firearms. 26 U.S.C. § 5845(a), (g), (h) (1994). The Act defined an antique firearm as

any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
Id. § 5845(g). Unserviceable firearms were recognized as "incapable of discharging a shot by means of an explosive and incapable of being readily restored to a firing condition." Id. § 5845(h). While these exceptions could be interpreted as concessions to American gun collectors, the exceptions are of little practical value. Unserviceable weapons, having been deprived of their functionality, are viewed as less than desirable and generally have significantly lower market values than their functional counterparts. See, e.g., S.P. Fjestad, BLUE BOOK OF GUN VALUES 31 (16th ed. 1995) (noting that antique firearms that are mechanically inoperative "are generally undesirable as a collections firearm") (referencing the National Rifle Association's standards of conditions for antique firearms). Antique firearms, confined by their legal definition to those firearms available up to the Spanish-American War, see 26 U.S.C. § 5845(h) (1994), fail to include the majority of collectible weapons measured in terms of both value and transactions. Return to text.

[108] Antique firearms were exempted from the definition of "firearm" and thus were not subject to the interstate trading restrictions. 18 U.S.C. § 921(a)(3) (1994). Return to text.

[109] Id. § 922(b). Return to text.

[110] Id. § 922(d) (extending a prohibition that originally applied only to federally licensed parties, the new language also prohibited private parties from transferring firearms to felons, fugitives, indictees, drug addicts, and the mentally defective). This legislation closed a loophole whereby qualified private parties were legally purchasing firearms on behalf of prohibited persons, and it was intended to prevent firearm transfers to drug addicts. Return to text.

[111] Id. § 922(p) (declaring illegal the manufacture, importation, sale, shipment, delivery, possession, transfer, or receipt of any firearms not detectable by airport security devices). The Undetectable Firearms Act was intended to eliminate "the threat posed by firearms which could avoid detection at security checkpoints: airports, government buildings, prisons, courthouses, [and] the White House." H.R. REP. NO. 100-612, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 5359. While this legislation did not include an express requirement of an interstate commerce nexus for the prohibition of such a firearm, the relationship between the Undetectable Firearms Act's applicability to airport passenger processing and interstate commerce is undeniable and has never been challenged. Return to text.

[112] 18 U.S.C. § 924(h) (1994) (making unlawful the transfer of a firearm with knowledge "that such firearm will be used to commit a crime of violence . . . or drug trafficking"). This statute, like the Undetectable Firearms Act, is infirm because of the absence of an express interstate commerce nexus requirement. While the drug-trafficking crimes addressed by the statute are all federal crimes, the crimes of violence are not so limited. Id. For example, under the Anti-Drug Abuse Amendments Act, a person transferring intrastate a firearm that was not previously in interstate commerce and knowing that such firearm would be used in a robbery within that same state would commit a federal crime. This is a bold stroke, even by congressional standards. Congress should have known that any legislative finding regarding an interstate commerce nexus would foreclose a Tenth Amendment challenge, since the Supreme Court would defer to the legislative mandate so long as any rational basis existed for the legislation. Cf., Preseault v. ICC, 494 U.S. 1, 17 (1990); Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276 (1981); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964). Any rational nexus would support the constitutionality of the statute, yet Congress did not provide one. Accordingly, the Anti-Drug Abuse Amendments Act appears to be unconstitutional, given the glaring absence of either a factual nexus to interstate commerce or a congressional finding of such a nexus. Return to text.

[113] 18 U.S.C. §§ 921-30 (1994) (evincing the resumption of grounding gun control legislation on the commerce power). While this legislation contained no bold gun control initiatives, the technical amendments to Title 18, chapter 44 of the United States Code served to restrict further the ability of Americans to assemble their own weapons from imported parts. See id. § 922(r). The Crime Control Act enhanced the penalty for the unlawful possession of firearms in a federal facility, making the punishment a possible two-year prison term and fine. Id. § 930(e)(1). Additionally, the Crime Control Act expanded the definition of "moving as . . . interstate or foreign commerce" to include any firearms that had, "at any time, been shipped or transported in interstate or foreign commerce." Id. § 922(k). Prior to this expansion, "moving as . . . interstate or foreign commerce" was interpreted as applying only to firearms transactions with attendant contemporaneous movement in interstate or foreign commerce. H.R. REP. NO. 681, 101st Cong., 2d Sess., at 106 (1990) (explaining that the Crime Control Act would "permit prosecution . . . where the firearms have already moved in interstate or foreign commerce"). Return to text.

[114] 18 U.S.C. §§ 921(a), 922(q), 924(a) (1994). The Gun-Free School Zones Act was introduced to "ensure that our school grounds do not become battlegrounds . . . ." 136 CONG. REC. S17595-01 (1990). The Act was later declared unconstitutional. See United States v. Lopez, 115 S. Ct. 1624, 1629-34 (1995) (holding that the Gun-Free School Zone Act exceeds congressional authority granted under the Commerce Clause). Return to text.

[115] 18 U.S.C. § 922(s) (1994) (limiting handgun purchases by requiring a pre-purchase waiting period and a background check on prospective purchasers). The waiting period requirement called for the passage of five business days between the time an individual contracts to purchase a handgun and the date that possession transfers from the seller to the buyer. Id. § 922(s)(1). During those five days, local law enforcement officials were required to "make a reasonable effort to ascertain . . . whether receipt or possession [of a handgun by the prospective buyer] would be in violation of the law." Id. § 922(s)(2). The Brady Handgun Violence Prevention Act's background check requirement lacks a rational nexus to interstate commerce and interferes with the states' right to control the activities of state law enforcement personnel. Accordingly, this statute's constitutionality is doubtful. See Mack v. United States, 856 F. Supp. 1372 (D. Ariz. 1994), cert. granted, 64 U.S.L.W. 3837 (U.S. June 17, 1996) (No. 95-1503) (holding that the Brady Handgun Violence Prevention Act's requirement that local law enforcement personnel conduct a background check on prospective purchasers violates the Tenth Amendment); see also Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994), cert. granted, 64 U.S.L.W. 3837 (U.S. June 17, 1996) (No. 95-1478); McGee v. United States, 863 F. Supp. 321 (S.D. Miss. 1994); Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994). However, "even if a national 7-day waiting period had been in effect in 1981, it wouldn't have prevented John Hinckley from buying the gun he used tragically to wound President Reagan, White House Press Secretary Jim Brady, a Secret Service agent and a local policeman." 137 CONG. REC. H2831-02 (1991). Return to text.

[116] 18 U.S.C. §§ 921-22 (1994). Return to text.

[117] Id. § 922(v). Return to text.

[118] Id. § 921(a)(30). Return to text.

[119] Id. § 921(a)(31). Return to text.

[120] See Michael G. Lenett, Note, Violent Crime Control and Law Enforcement Act of 1994: Taking a Bite Out of Violent Crime, 20 DAYTON L. REV. 573, 576-77 (1995) (noting statistics that indicate that assault weapons are 16 times more likely to be traced to crime than conventional weapons). Return to text.

[121] See discussion infra part IV.D. Pro-gun forces interpret the Court's silence as an affirmation of the Court's Miller opinion—"that Miller . . . guarantee[s] protection for any weapon with proven military utility." Andrew J. McClurg, The Rhetoric of Gun Control, 42 AM. U.L. REV. 53, 100 (1992); see also discussion infra part IV.B. Anti-gun advocates emphasize that the Court's silence is indicative of the Court's "disinclination to disturb" lower court decisions favoring gun control statutes. Herz, supra note 55, at 77. Return to text.

[122] See discussion infra part IV.A-C. Return to text.

[123] 92 U.S. 542 (1875). Return to text.

[124] Id. at 548-49. Return to text.

[125] Id. at 559. Return to text.

[126] JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 2.13(g) (5th ed. 1995). Return to text.

[127] See Cruishank, 92 U.S. at 548-59. Return to text.

[128] Id. at 553. Return to text.

[129] Id. (citations omitted). Return to text.

[130] U.S. CONST. amend. IX. Return to text.

[131] See discussion supra part II.C; Johnson, supra note 67, at 3 (explaining that an individual right to arms may be derived from the Ninth Amendment). Return to text.

[132] Vandercoy, supra note 19, at 1017; supra notes 68-80 and accompanying text. Return to text.

[133] U.S. CONST. amend. XIV. Return to text.

[134] 116 U.S. 252 (1886). Return to text.

[135] Id. at 254 (quoting the indictment against Presser). Return to text.

[136] Id. at 265-68 (citing City of New York v. Miln, 11 Pet. 102, 139 (1837)). In Miln, the Court considered the extent of the state police power prior to the Fourteenth Amendment. Miln, 11 Pet. at 139. Miln explains that

[i]t is not only the right, but the bounded and solemn duty of a state, to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise, are not surrendered or restrained by the constitution of the United States.
Id. Return to text.

[137] 116 U.S. at 265. Return to text.

[138] Id. at 266 (citing U.S. CONST. amend. XIV). Return to text.

[139] Id. at 265. Return to text.

[140] In effect, Cruikshank and Presser held that the Second Amendment applies solely against the federal government. See O'Hare & Pedreira, supra note 19, at 191-92. O'Hare and Pedreira note that the states' rights argument

cannot withstand close scrutiny because it relies upon [Cruikshank and Presser, which] were decided before the concept of incorporation was adopted. Nonetheless, because of the Supreme Court's rejection of "the proposition that the entire Bill of Rights applies to the states," a number of federal and state courts refuse to incorporate the Second Amendment against state governments.
Id. Return to text.

[141] Presser, 116 U.S. at 266. Return to text.

[142] Id. at 268. Return to text.

[143] See generally Vandercoy, supra note 19; Levinson, supra note 43; Herz, supra note 55; Richard M. Aborn, The Battle over the Brady Bill and the Future of Gun Control Advocacy, 22 FORDHAM URB. L.J. 417 (1995). Return to text.

[144] 307 U.S. 174 (1939). Return to text.

[145] Id. at 175. Return to text.

[146] Id. at 177. Return to text.

[147] Id. at 175. Return to text.

[148] Herz, supra note 55, at 68. Return to text.

[149] Id. Return to text.

[150] 307 U.S. at 178. Return to text.

[151] Id. at 179. Return to text.

[152] Id. at 179-80. Return to text.

[153] See, e.g., Cases v. United States, 131 F.2d 916, 922-23 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943); Herz, supra note 55, at 69. Return to text.

[154] Levinson, supra note 43, at 654-55 ("Ironically, Miller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons."); see also Vandercoy, supra note 19, at 1009 ("[The Second Amendment] right envisioned was not only the right to be armed, but to be armed at a level equal to the government."). Return to text.

[155] 445 U.S. 55 (1980). Return to text.

[156] Id. at 56. Return to text.

[157] Id. at 66. Return to text.

[158] See id. (citing Richardson v. Ramirez, 418 U.S. 24 (1974)). Return to text.

[159] Id. at 60-68. Return to text.

[160] See, e.g., Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943); United States v. Tomlin, 454 F.2d 176 (9th Cir.), cert. denied, 406 U.S. 924 (1972); United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983); Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), cert. denied, 498 U.S. 1047 (1991); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 113 S. Ct. 1614 (1993); United States v. Kozerski, 518 F. Supp. 1082 (D.N.H. 1981), aff'd mem., 740 F.2d 952 (1st Cir.), cert. denied, 469 U.S. 842 (1984); United States v. Sandidge, 520 A.2d 1057 (D.D.C.), cert. denied, 484 U.S. 868 (1987). Return to text.

[161] See, e.g., Carpenter v. Gomez, 116 S. Ct. 488 (1995) (stating that "an order denying a petition for certiorari expresses no opinion on the merits of the case"); Missouri v. Jenkins, 115 S. Ct. 2038, 2047 (1995) (quoting United States v. Carver, 260 U.S. 482 (1923)) (stating that "the denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times"); Barber v. Tennessee, 115 S. Ct. 1177 (1995) (citing Carver, 260 U.S. at 490) (restating "the settled proposition that this Court's denial of certiorari does not constitute a ruling on the merits"). Despite the Court's avowed position on the effect (or lack thereof) of certiorari denials, the Court's track record in gun control cases is described as "particularly disturbing" because certiorari denials allow lower court decisions to create or uphold laws in derogation of the right to arms. Herz, supra note 55, at 77 ("Although orthodox understanding views a denial of certiorari as making no comment on the merits, the Court's long-standing laissez-faire attitude indicates, at a minimum, a deep disinclination to disturb existing doctrine."). Return to text.

[162] 907 F.2d 1041 (11th Cir. 1990), cert. denied, 498 U.S. 1047 (1991). Return to text.

[163] Id. at 1042. Return to text.

[164] United States v. Miller, 307 U.S. 174, 178 (1939). Return to text.

[165] 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S 863 (1983). Return to text.

[166] Id. at 264. Return to text.

[167] Id. Return to text.

[168] Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D.Ill. 1981). Return to text.

[169] Quilici, 695 F.2d at 261-64. Return to text.

[170] Id. at 265. Return to text.

[171] See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1885); United States v. Miller, 307 U.S. 174, 179-80 (1939). Return to text.

[172] Quilici, 695 F.2d at 271. Return to text.

[173] Id. at 267. Return to text.

[174] Id. at 268. Return to text.

[175] Id. at 269. Return to text.

[176] Id. at 270 (finding that "[t]he Supreme Court has specifically rejected the proposition that the entire Bill of Rights applies to the states through the [F]ourteenth [A]mendment"). Return to text.

[177] Id. at 271. Return to text.

[178] See discussion supra part II. Return to text.

[179] Quilici, 695 F.2d at 271. Quilici featured Judge Coffey's well-considered dissenting opinion that may have been intended to whet the Supreme Court's certiorian appetite. Id. at 271-80 (Coffey, J., dissenting). Judge Coffey highlighted the Village of Morton Grove's violation of the Court's oft-recognized and oft-defended fundamental right to privacy within the home. Id. at 279. The Court's desire silently to support lower court rulings in contravention of the right to bear arms has been so strong that the Court, in denying certioria to Quicili, seemed willing to sacrifice the invocation and application of the Court's cherished right to privacy. Return to text.

[180] See, e.g., Lenett, supra note 120, at 614-15 (noting that there are four possible tiers of gun regulation). Return to text.

[181] Id. Return to text.

[182] Id. at 614. Return to text.

[183] Id. Return to text.

[184] Id. Return to text.

[185] Id. Return to text.

[186] Id. at 611-12 (claiming that the successes registered by the anti-gun forces during the 103d Congress "broke forever the image of NRA invulnerability and gun control as a taboo subject of federal legislation"). Return to text.

[187] 18 U.S.C. §§ 921-22 (1994); see also supra part III.E. Return to text.

[188] See H.R. 3932, 103d Cong., 2d Sess. (1993); S. 1882, 103d Cong., 2d Sess. (1993). The Gun Violence Prevention Bill was not enacted by the 103d Congress. Allen G. Breed, Flea Market Handgun Sales Seen as Criminals' Loophole, THE CHARLESTON GAZETTE, Jan. 16, 1995, at P1A. The bill has not been reintroduced in the Republican-controlled Congress although Handgun Control Inc. continues to lobby for the measure. Id. Handgun Control Inc. is a Washington, D.C.-based lobbying group that was instrumental in the passage of the Brady Handgun Violence Prevention Act (Brady I). Id.; 137 CONG. REC. H2840 (1991) (statement of Rep. Marlenee, Repub.) ("Of course, Handgun Control, Inc. wants the Brady bill passed. That is exactly why. Handgun control."). James Brady, former President Reagan's press secretary, is a member of Handgun Control, Inc.'s board of directors, and his wife, Sarah, is the organization's chair. Larry King Live (CNN television broadcast, Mar. 27, 1996) (The Bradys decried the Second Amendment as "a fraud on the American people."). Return to text.

[189] H.R. 3932, 103d Cong., 2d Sess. (1993); S. 1882, 103d Cong., 2d Sess. (1993) (defining Saturday Night Specials as handguns whose barrels, slides, frames, or receivers are made of nonhomogeneous metals that melt or deform at temperatures less than 800 degrees; or pistols without safety mechanisms that meet specific criteria; or handguns that fail to meet minimum length and height requirements). Return to text.

[190] 18 U.S.C. §§ 921-22 (1994). Return to text.

[191] Lenett, supra note 120, at 614. Return to text.

[192] Id. The National Rifle Association was instrumental in assisting "the Republican Party [to] gain control of Congress in the 1994 elections with massive campaign contributions." James Rosen, House Vote To Repeal Assault-Weapons Ban Won't Withstand Veto; Democratic Congressmen Accuse Speaker Newt Gingrich of Bowing to the National Rifle Association, THE FRESNO BEE, Mar. 23, 1996, at A1. While conservative Republicans in the House of Representatives recently engineered the passage of a bill repealing the Public Safety and Recreational Firearms Use Protection Act, the majority was insufficient to override a promised veto by President Clinton. Id.; David Hess, House Repeals Weapons Ban; Not Veto Proof: The Bill Isn't Likely To Get Out of the Senate and President Clinton Has Promised To Veto It, THE POST & COURIER, Mar. 23, 1996, at A1. Although the Republican majority has proved insufficient to overturn existing gun control statutes, the Republican presence has temporarily derailed pro-gun control forces in their attempts to pursue more restrictive legislation. Naftali Bendavid, Readying for a New Assault; After Hard-Won Gains, Gun Control Advocates Face the Prospect of Losing Ground in a Revamped Congress, THE RECORDER, Nov. 22, 1994, at 1 (quoting Sarah Brady, Chair, Handgun Control Inc.) ("Obviously, with the Republican landslide, the hopes for a lot of positive action on our part are greatly diminished."). Return to text.

[193] See H.R. 3932, 103d Cong., 2d Sess. (1993); S. 1882, 103d Cong., 2d Sess. (1993). The Gun Violence Prevention Bill was not enacted by the 103d Congress. Allen G. Breed, Flea Market Handgun Sales Seen As Criminals' Loophole, THE CHARLESTON GAZETTE, Jan. 16, 1995, at P1A. The bill has not been reintroduced in the Republican-controlled Congress although Handgun Control Inc. continues to lobby for the measure. Id. Return to text.

[194] Herz, supra note 55, at 151 n.424 (citing Josh Sugarmann & Kirsten Rand, Cease Fire: A Comprehensive Strategy To Reduce Firearms Violence 2 (1994) (discussing the Violence Policy Center's "comprehensive regulatory approach to firearms")). Return to text.

[195] Id. Return to text.

[196] Id. Return to text.

[197] Massad Ayoob, In the Time of Brady, A Dealer's Responsibilities Continue To Grow; Brady Handgun Prevention Act, 39 SHOOTING INDUSTRY 18, 18 (1994) ("The good news is that business is up, not just from old customers who see the grim legislative situation as the last chance to stock up on enough guns for themselves and their heirs, but from first-time gun purchasers."); Interview with Harry L. Coe, IV, supra note 6. Return to text.

[198] Herz, supra note 55, at 151 n.424. Return to text.

[199] Id. (citing the price of the 15-round capacity Glock magazine that moved from $32 at the time of passage to $100); see generally Joe Poyer, Bonus Buyers' Guide, GUNS & AMMO, June 1994, at 76, 78 (discussing gun pricing in general and citing the "Australian-made Lithgow L1A1s [whose] . . . price has more than tripled"). Return to text.

[200] Interview with Harry L. Coe, IV, supra note 6; Telephone Interview with Wain Roberts, supra note 8. Mr. Roberts described the demand surge and price increases following the passage of the Public Safety and Recreational Firearms Use Protection Act. Telephone Interview with Wain Roberts, supra note 8. He concurred in the probable likelihood of a resurgence in demand and a resumption of dramatic price increases following the possible passage of third-rung legislation. Id. However, Mr. Roberts also described the present market as anemic, given the relative market security induced by the Republican Congress. Id. "It seems that if [the gun control lobby] wants to reduce the supply of firearms, they would be better served not to pursue gun control legislation and watch the dealers—large and small—go out of business from a lack of demand." Id. Return to text.

[201] Interview with Harry L. Coe, IV, supra note 6; Telephone Interview with Wain Roberts, supra note 8. Return to text.

[202] See supra note 183 and accompanying text. Return to text.

[203] See supra notes 184-85 and accompanying text. Return to text.

[204] U.S. CONST. amend. V. Return to text.

[205] See NOWAK & ROTUNDA, supra note 126, § 11.11 (noting that the Fifth Amendment "was not seen as creating a new legal restriction . . . but rather as recognizing the existence of a principle of natural justice"). Return to text.

[206] See id. Return to text.

[207] See id. Return to text.

[208] See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425-26 (1982) (finding that a minor occupation is a taking requiring compensation). Return to text.

[209] BLACK'S LAW DICTIONARY 292 (6th ed. 1990); see also Department of Transp. v. Lundberg, 825 P.2d 641, 643 n.1 (Or. 1992). Return to text.

[210] See, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987) (recognizing landowner's right to seek compensation by bringing an action in inverse condemnation of land). Return to text.

[211] See NOWAK & ROTUNDA, supra note 126, § 8.2 (noting that the police power is not mentioned in the Constitution but is cited often in constitutional law cases). Return to text.

[212] See id. § 11.10. Return to text.

[213] See id. Return to text.

[214] See id. Return to text.

[215] See, e.g., Mugler v. Kansas, 123 U.S. 623 (1887) (allowing the economic value of a brewery to be destroyed by state legislation prohibiting the production of alcoholic beverages and holding that a "prohibition simply upon the use of property for purposes that are declared . . . to be injurious to the health, morals or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit"). Return to text.

[216] See generally E.F. Roberts, Mining with Mr. Justice Holmes, 39 VAND. L. REV. 287, 293 (1986). Return to text.

[217] See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (involving owners of subsurface mining rights who complained that a Pennsylvania statute severely restricted the mining of coal). Return to text.

[218] Nicholas V. Morosoff, Note, "'Take' My Beach, Please!": Nollan v. California Coastal Commission and a Rational-Nexus Constitutional Analysis of Development Exactions, 69 B.U. L. REV. 823, 837 (1989) (acknowledging that courts have had problems in determining when a regulation goes "'too far'"). Return to text.

[219] See NOWAK & ROTUNDA, supra note 126, § 11.12(a) (stating that Supreme Court rulings follow no clear theoretical guidelines); see also Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987) (noting the absence of standards for defining "legitimate state interest" or "substantially advance"). Return to text.

[220] See, e.g., Webb's Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980). Return to text.

[221] 80 U.S. 166, 181 (1871) (finding a compensable taking of property where the "real estate is actually invaded by superinduced additions of water, earth, sand, or other material"). Return to text.

[222] Id. at 166. Return to text.

[223] Id. at 174. Return to text.

[224] Id. at 177. Return to text.

[225] 123 U.S. 623, 668-71 (1887) (holding that a statute preventing the injurious use of property does not effect a compensable taking). Return to text.

[226] Id. at 669. Return to text.

[227] Id. Return to text.

[228] Id. Return to text.

[229] See Allison B. Waters, Takings—City Planners Must Bear the Burden of Rough Proportionality in Exactions and Land Use Regulation, Dolan v. City of Tigard, 114 S. Ct. 2309 (1994), 37 S. TEX. L. REV. 267, 274-75 (1996) (citing Mugler, "[T]he Supreme Court carved out the police power exception to the Takings Clause: the government need not compensate landowners for governmental takings of private property which are necessary to protect public health, safety and welfare. The police power exception is still available to [state and local] government . . . ."); J. Kelly Strader, Taking the Wind Out of the Government's Sails?: Forfeitures and Just Compensation, 23 PEPP. L. REV. 449, 455 (1996) ("The Mugler decision and its progeny came to be known for the proposition that the government may regulate a 'harmful' or 'noxious' use of public property without paying just compensation."). Return to text.

[230] 260 U.S. 393 (1922). Return to text.

[231] Id. at 393 (noting that protection of private property in the Fifth Amendment presupposes that it is wanted for public use but provides that it shall not be taken for such use without compensation). Return to text.

[232] Id. at 395. Return to text.

[233] Id. at 415 (asserting that those "so short sighted as to acquire only surface rights without the right of support" should not be afforded judicial relief anymore than they should be allowed to take the right in the first place and refuse to pay for it). Return to text.

[234] Id. Return to text.

[235] Id. at 416. Return to text.

[236] Id. at 397 (The "plaintiffs in error" claimed that the Kohler Act was enacted "to protect the lives and safety of the public."). Return to text.

[237] See NOWAK & ROTUNDA, supra note 126, § 11.12(a) (noting that Justice Harlan's opinion in Mugler limited the recognition of a taking to cases of governmental property appropriation and thereby conflicted with Justice Holmes' concern with fairness and the degree of interference with property as expressed in Pennsylvania Coal). Return to text.

[238] 260 U.S. at 413 (questioning "whether the police power [could] be stretched so far"). Return to text.

[239] Id. Return to text.

[240] Id.; see NOWAK & ROTUNDA, supra note 126, § 11.12(a). Return to text.

[241] See NOWAK & ROTUNDA, supra note 126, § 11.12(a). Return to text.

[242] See 260 U.S. at 415. Return to text.

[243] 276 U.S. 272 (1928). Return to text.

[244] Id. at 277-78. Return to text.

[245] Id. at 278-79. Return to text.

[246] Id. at 277. Return to text.

[247] Id. at 279-80. Return to text.

[248] Id. at 279. Return to text.

[249] See NOWAK & ROTUNDA, supra note 126, § 11.12(a) (acknowledging that the "Court's decisions in 'takings' issues may properly be viewed as a 'crazy quilt pattern' of rulings") (citations omitted). Return to text.

[250] Id. Return to text.

[251] 438 U.S. 104 (1978). Return to text.

[252] Id. at 152 (Rehnquist, J., dissenting) (quoting Pennsylvania Coal, 260 U.S. at 416) (lamenting the majority's failure to heed Justice Holmes' warning in Pennsylvania Coal that the courts were "'in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change'"). Return to text.

[253] 458 U.S. 419 (1982). Return to text.

[254] Id. at 438 n.16, 443 (Blackmun, J., dissenting) (noting that the property at issue was approximately "36 feet of cable one-half inch in diameter and two 4" x 4" x 4" metal boxes"). Return to text.

[255] 444 U.S. 51 (1979). Return to text.

[256] Id. at 67-68 (holding that "the simple prohibition of the sale of lawfully acquired property . . . does not effect a taking in violation of the Fifth Amendment"). Return to text.

[257] See id. at 65-66. Return to text.

[258] Id. Return to text.

[259] 480 U.S. 470, 504-05 (1987) (lambasting "petitioners' position that, because they contracted with some previous owners of property generations ago, they have a constitutionally protected legal right to conduct their mining operations in a way that would make a shambles of all those buildings and cemeteries") (citation omitted). Return to text.

[260] See NOWAK & ROTUNDA, supra note 126, § 11.12(b). Return to text.

[261] Keystone, 480 U.S. at 474. Return to text.

[262] Id. at 478. Return to text.

[263] Id. at 506. Return to text.

[264] Id. at 481-89. Return to text.

[265] Id. at 488-93. Return to text.

[266] Id. at 495-96 (noting that "petitioners have not claimed . . . that the Act makes it commercially impracticable for them to continue mining their bituminous coal interests in western Pennsylvania. Indeed, petitioners have not even pointed to a single mine that can no longer be mined for profit."). In this sentence, the author uses the phrase "too far" as a "term of art" and not as an attribution of that phrase to Justice Stevens' Keystone opinion. Return to text.

[267] See generally id. at 479-506. Return to text.

[268] Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1162 (1993). Return to text.

[269] 483 U.S. 825, 841-42 (1987) (ruling that "California is free to advance its 'comprehensive program,' if it wishes, by using its power of eminent domain for this 'public purpose,' . . . but if it wants an easement across the Nollans' property, it must pay for it") (citation omitted). Return to text.

[270] Id. at 834-67; see also Morosoff, supra note 218, at 823-24. Return to text.

[271] 112 S. Ct. 2886, 2901 (1992) (emphasizing "that to win its case South Carolina must do more than proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest"); see also Herman Schwartz, Property Rights and the Constitution: Will the Ugly Duckling Become a Swan?, 37 AM. U. L. REV. 9, 10 (1987) (anticipating the increasing influence of conservative economic and legal thought); Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury Signifying Nothing, 12 VA. ENVTL. L.J. 439, 442-47 (1993) (presenting views on Reagan agenda to thwart excessive property regulation at the federal and state levels). Return to text.

[272] 112 S. Ct. at 2889 (acknowledging that "[t]he Beachfront Management Act brought Lucas's plans to an abrupt end"). Return to text.

[273] 404 S.E.2d 895 (S.C. 1991). Return to text.

[274] Lucas, 112 S.Ct. at 2889-902. Return to text.

[275] Id. at 2901 (stating that "it was open to the State at any point to make the implication of those background principles of nuisance and property law explicit"). Return to text.

[276] Id. at 2901-02. Return to text.

[277] See Sugameli, supra note 271, at 441 (predicting that Lucas will have "very little practical effect on regulation of real property"). Return to text.

[278] 112 S. Ct. at 2899. Return to text.

[279] Lynda J. Oswald, Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 WASH. L. REV. 91, 129-30 (1995) ("Although the reduction in value in Andrus was substantial, the Court found that the appellees did retain some ability to derive an economic profit from the artifacts . . . . The [artifacts] were not confiscated by the government, nor were they subjected to restraint or physical invasion."). Return to text.

[280] Id.; see also Warner/Elektra/Atlantic Corp. v. County of DuPage, 991 F.2d 1280, 1285 (7th Cir. 1992) ("It is rare for American governments to requisition personal property, but sometimes they do so and when they do they have to pay just compensation.") (citing United States v. Cors, 337 U.S. 325 (1949); see, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001-04 (1984); Fallini v. United States, 56 F.3d 1378, 1383 (Fed. Cir. 1995) ("The fact that the water at issue in this case is personalty and the land at issue in the easement case was realty does not alter the nature of the analysis."); Pittman v. Chicago Board of Educ., 64 F.3d 1098, 1104 (7th Cir. 1995) (citing Ruckelshaus, 467 U.S. at 1003-04) (Property as used in the takings clause "encompasses real property and personal property . . . ."). Return to text.

[281] See discussion supra part V. Return to text.

[282] See discussion supra parts III., IV. While anti-gun forces suffered a minor setback with the failure of Brady II, future attempts at passing similar legislation will undoubtedly be made. See supra notes 188, 193 and accompanying text. Return to text.

[283] See discussion supra part V. Return to text.

[284] See discussion supra part VI.E. Return to text.

[285] See discussion supra part VI.B. Return to text.

[286] See discussion supra part VI.F. Return to text.

[287] See discussion supra part VI.G. Return to text.

[288] See discussion supra part VI.H. Return to text.

[289] See discussion supra part VI. Return to text.

[290] See discussion supra part V. Return to text.

[291] See discussion supra part VI. Return to text.

[292] 123 U.S. 623 (1887). Return to text.

[293] 276 U.S. 272 (1928). Return to text.

[294] See O'Hare & Pedreira, supra note 19, at 200-01 (citing Mugler and Schoene to support the proposition that "a state has no duty to compensate a property owner if an entire class of property is destroyed for the public good rather than taken for public use"). Return to text.

[295] See discussion supra part VI. Return to text.

[296] See discussion supra part VI. Return to text.

[297] See discussion supra part VI.D. Return to text.

[298] See discussion supra part VI. Return to text.

[299] See discussion supra part VI.C.; see also supra notes 239-42 and accompanying text. Return to text.

[300] See O'Hare & Pedreira, supra note 19, at 200-01 (arguing that the Court should find a noncompensable taking in the case of fourth-rung legislation). But cf. Mark Udulutch, Note, The Constitutional Implications of Gun Control and Several Realistic Gun Control Proposals, 17 AM. J. CRIM. L. 19, 39-41 (1989) (concluding that a federal government-imposed firearms ban would require compensation). Return to text.

[301] See discussion supra part VI.A. Return to text.

[302] Robert Davis & Haya El Nasser, New Ammo for Gun Debate, USA TODAY, Dec. 28, 1994, at A1. Return to text.

[303] Telephone Interview with Wain Roberts, supra note 8 (stating that $300 would be a reasonable valuation for the average American firearm in circulation). To place this figure in perspective, the fair market values of the two largest mergers in American history were $25 billion for the RJR-Nabisco combination and $19 billion for the Walt Disney-Capital Cities/ABC transaction. Paul Farhi, Walt Disney Co. To Buy Capital Cities/ABC; $19 Billion Merger Would Create a Giant in Movies, Television, WASH. POST, Aug. 1, 1995, at A1. Return to text.

[304] 142 CONG. REC. S4161 (daily ed. Apr. 25, 1996) (statement of Sen. Moseley-Braun). Return to text.

[305] Amy Waldman, Move Over, Charles Keating. Causes of the Savings and Loan Scandal, 27 WASH. MONTHLY 26 (1995) (estimating the cost of the savings and loan bailout at a minimum of $110 billion). Return to text.

[306] See, e.g., D.C. CODE 1981, § 6-2320(c) (1995). Return to text.

[307] See, e.g., id. Return to text.

[308] 399 A.2d 861 (D.C. 1979). Return to text.

[309] Id. at 865 (citing D.C. CODE § 6-1820(c) (Supp. 1978)); see also Quilici v. Village of Morton Grove, 532 F. Supp. 1169, 1183-84 (N.D. Ill. 1981) (declining to find a taking when "gun owners who wish to may sell or otherwise dispose of their handguns outside" the town's lawful boundaries), aff'd, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). Return to text.

[310] See, e.g., Vandercoy, supra note 19; Levinson, supra note 43; Herz, supra note 55; Aborn, supra note 143. Return to text.

[311] Van Alstyne discounts the argument that the right to bear arms is limited by a duty of service in the militia:

In recent years it has been suggested that the Second Amendment protects the "collective" right of states to maintain militias, while it does not protect the right of "the people" to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.
William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236, 1243 n.19 (1994) (quoting STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 83 (1984)); see also discussion supra part III.B. Return to text.

[312] See Herz, supra note 55, at 64. Return to text.

[313] See discussion supra parts III., IV. Return to text.

[314] See discussion supra part II. Return to text.

[315] NOWAK & ROTUNDA, supra note 126, § 11.7, at n.10. Return to text.

[316] See Discussion supra part II.C. Return to text.

[317] NOWAK & ROTUNDA, supra note 126, § 11.7, at n.10 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 579-80 n.15 (1980) (plurality opinion by Burger, C.J.) (justifying a judicial role in defining "fundamental rights not expressly guaranteed" and stating: "Madison's efforts, culminating in the Ninth Amendment, served to allay the fears of these who were concerned that expressing certain guarantees could be read as excluding others."). Return to text.

[318] See discussion supra parts VI., VII. Return to text.

[319] See discussion supra parts VI., VII. Return to text.

[320] Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 198 (1819) (holding that the State of New York could not release a debtor from his contractual obligations). Return to text.

[321] See Presser v. Illinois, 116 U.S. 252, 265 (1886); see also discussion supra part II. Return to text.

[322] U.S. CONST. amend. II; see also discussion supra part II. Return to text.

[323] U.S. CONST. amend. II. Return to text.

[324] U.S. CONST. amend. IX. Return to text.

[325] See supra note 41 and accompanying text. Return to text.

[326] U.S. CONST. amend. V. Return to text.

[327] BLACK'S, supra note 209, at 1195 (defining "[p]rivate as [a]ffecting or belonging to private individuals, as distinct from the public generally"); id. at 1217 (defining "[p]rivate property" thus: "[a]s protected from being taken for public uses, is such property as belongs absolutely to an individual, and of which he has the exclusive right of disposition"); cf. id. (defining "[p]ublic property" as "those things . . . considered as being owned by 'the public,' the entire state or community, and not restricted to the dominion of a private person"); see generally Jeremy Paul, Can Rights Move Left?, 88 MICH. L. REV. 1622 (1990) (reviewing JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988)) (offering a discussion of the American private property system and private property rights). Return to text.

[328] Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). Return to text.

[329] BLACK'S, supra note 209, at 1195 (defining "[j]ust compensation" as "compensation which is fair to both the owner and the public"); see also Kaiser Aetna, 444 U.S. at 176 (requiring governmental payment for the taking of a "stick [] in the bundle of rights that are commonly characterized as property "). Return to text.

[330] West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 (1937) (Sutherland, Van Devanter, McReynolds & Butler, JJ., dissenting). Return to text.

[331] National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 647 (1949) (Frankfurter, J., dissenting and quoting Marshall, C.J.). Return to text.

[332] U.S. CONST. art. I. Return to text.

[333] Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1210 (1987) (Interpretivism's intellectual attractiveness derives from two closely related sources. The first is the assumption that the Constitution creates a predominantly democratic and majoritarian structure of government. With democracy representing the norm, interpretivists argue that society has consented to be bound by decisions of the Supreme Court, a nondemocratic institution, "only 'within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.'") (quoting Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 3 (1971)). Return to text.

[334] See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); NOWAK & ROTUNDA, supra note 126, § 1.3. Return to text.

[335] See Aborn, supra note 143, at 431 (citing a CNN/USA Today/Gallup poll of Dec. 17, 1993 and a LH Research, Inc. poll of Apr. 1, 1993); see also Andrew J. McClurg, The Rhetoric of Gun Control, 42 AM. U.L. REV. 53, 54 (1992) ("Despite all the rhetoric from the gun lobby, the fact is that the vast majority of law enforcement officials and most of the American public supports [the Brady] bill.") (citation omitted). Return to text.

[336] THE FEDERALIST No. 78, at 465 (A. Hamilton) (Clinton Rossiter ed., 1961) (calling on the judiciary to defend the Constitution against the "encroachments and oppressions of the representative body"). Return to text.

[337] Konigsberg v. State Bar of California, 366 U.S. 36, 68 (1961) (Black, J., dissenting). Return to text.

[338] Dolan v. City of Tigard, 854 P.2d 437, 447 (Or. 1993) (Peterson, J., dissenting), rev'd, 114 S. Ct. 2309 (1994). Return to text.