Category Archives: Gun Control

Picking a Gun Ban Repeal Bill

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One of last year’s hottest topics was President Clinton’s crime bill (the “Violent Crime Control and Law Enforcement Act of 1994”). A huge document, the bill was a massive assault on the Constitution. It expanded the federal role in law enforcement, which the Constitution left under control of the states. It spent billions of (borrowed) dollars on “crime prevention” measures that are not authorized by the Constitution. Worst of all, it violated the Second Amendment by banning so-called “semi-automatic assault weapons” and magazines with greater than ten round capacity.

The Second Amendment implications angered many voters and jeopardized the careers of a number of Congressmen. Some Representatives who voted for the crime bill, along with freshmen who were elected by aroused voters, have been trying to undo this mistake. Last September, 9th District Representative Lee Hamilton and others introduced a bill to repeal the assault weapons ban. In the current session of Congress, at least four bills have been introduced to bring about this repeal. Those of us who wish to preserve the Constitution should be trying to find at least one of these bills that we can support.

The best-known bill is HR 1488, the “Citizens’ Protection From Violent Crime Act of 1995.” This bill is being pushed by the NRA, which probably explains why so many usually conservative Representatives support it. There are three basic thrusts: federal penalties for possession or use of firearms while committing a state crime; protection from prosecution of anyone who uses a firearm for self-defense in his home; and repeal of the ban on semiautomatic weapons and large capacity magazines. While conservatives will applaud the latter two of these purposes, the section on federal penalties more than offsets the benefits of the other parts.

HR 1488 prescribes a penalty of five years for mere possession of a firearm during the commission of “any crime of violence or drug trafficking crime.” Penalties escalate for “brandishing” or discharging the firearm. If the crime is classified as “serious,” or is a repeat offense, the penalties are further multiplied. Thus, the five year penalty (without parole) for possession is applied when the crime is a non-serious first offense.

No mention is made of whether the firearm is legally possessed or not. I read this to mean that in Indiana, for example, a holder of a valid permit to carry a pistol would receive a five year federal sentence, without parole, for having a fist fight (“any crime of violence”) or possessing a small amount of marijuana (“any…drug trafficking crime”) while carrying his concealed pistol. Just like the “anti-terrorism” bill, HR 1488 would federalize a wide range of state crimes. Its increase of federal power at the expense of the states is just as much a violation of the Constitution as the gun ban is. It should be rejected unless the sections on federal penalties for state crimes are removed.

The other three bills are all similar to each other. HR 698 and 464 completely repeal the ban on semiautomatic weapons and large capacity (greater than ten rounds) magazines. In correspondence with Representative Lee Hamilton, he stated that HR 125, which he co-sponsored, is “identical” to these two bills. A careful examination of the bills (which is not as easy as it sounds) reveals that this is not quite the case. If my layman’s interpretation is correct, HR 125 leaves intact the crime bill’s definition of a “semi-automatic assault weapon,” and the federal penalty for use of such a weapon to commit a violent crime. It also does not repeal the ban on large capacity magazines.

It is well known among those who are familiar with guns that an “assault weapon” is defined by the military as a selective fire rifle (that is, it has a lever to switch its function between semi- and fully-automatic). Access to such weapons has been severely restricted for many years. The term “semiautomatic assault weapon” is a bit like the (hypothetical) term “long short-barreled shotgun.” In other words, it is nonsense. The crime bill’s definition embraces various semiautomatic rifles, shotguns, and even pistols, none of which would be classified as assault weapons by the Defense Department.

HR 125 leaves this definition in the federal code. It also perpetuates the silly idea that a violent crime is more serious if committed with a semiautomatic weapon. Representative Hamilton’s bill doesn’t add anything new; it just doesn’t provide the complete repeal that we need. I would judge it as far better than nothing, but would prefer HR 464 or 698.

What we really need is a bill to repeal the entire “Violent Crime Control and Law Enforcement Act of 1994.” It is an unconstitutional monstrosity. Until such a repeal bill comes along, I urge you to ask your Representative to support HR 464 or HR 698 (or even HR 125, if that’s as far as he will go toward repeal), and to strongly oppose HR 1488 as it now stands.

Essential Reading for the Gun Control Debate

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I recently ran across a book that should interest anyone who is serious about debating either side of the gun control issue. That Every Man be Armed: The Evolution of a Constitutional Right, by Stephen P. Halbrook, argues for the idea that the Second Amendment guarantees a personal right to keep and bear arms. The alternative, of course, is that the Amendment merely guarantees to the states a right to maintain organized militias (like the National Guard). The author effectively demolishes this argument.

The title comes from a statement of Patrick Henry: “The great object is, that every man be armed….Everyone who is able may have a gun…”

Since Halbrook is a lawyer, his book is not light reading. It details the philosophical and legal background of the Second and Fourteenth Amendments, and follows the development of court decisions after the adoption of these amendments. With 65 pages of notes to back up 200 pages of text, there is plenty of documentation for every claim made in the book. But don’t let this scare you off: the author has a readable style that makes his writing understandable to non-lawyers.

For philosophical background (Chapter 1), the author goes as far back as Plato and Aristotle in ancient Greece. Plato is presented as the bad guy, who advocates the dictatorship of a “philosopher king” and restriction of arms bearing to a military caste. Aristotle, on the other hand, thinks of arms bearing as an essential qualification for citizenship. A similar analysis is made of the thinking of philosophers in ancient Rome and medieval, Renaissance and Enlightenment Europe. In a second chapter, Halbrook covers in detail the development of the English common law tradition of armed freemen (yeomen).

The Second Amendment reads as follows: “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.” Chapter 3 of Halbrook’s book covers in depth the thinking of the Founding Fathers at the time of the adoption of the Constitution and Bill of Rights, including this amendment.

Regarding the reference to a militia, the following from the Virginia Declaration of Rights (by George Mason) is typical of their thinking: “that a well regulated Militia, composed of the body of the People, trained to Arms, is the proper, natural, and safe Defense of a free State…” That the right was thought of as personal rather than collective is made even more clear by the position of the New Hampshire convention for ratifying the Constitution: “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

In Chapter 4, Halbrook discusses the interpretation of the Second Amendment in the period between its adoption and the Civil War. He shows that standard legal texts and most court decisions regarded the right to keep and bear arms as an individual right. The exceptions among the court decisions were to be found in the southern states, where slaves and even free “persons of color” were deprived of this right.

Following the Civil War, the Fourteenth Amendment was passed to extend the prohibitions in the Bill of Rights to the states as well as the federal government. The thesis of Chapter 5 is that this was done partly in response to some of the first gun control laws in our nation. For example, an 1866 Alabama law required “that it shall not be lawful for any freedman, mulatto, or free person of color in this State, to own firearms, or carry about his person a pistol or other deadly weapon.”

Finally, in Chapters 6 and 7, Halbrook examines the various federal and state court decisions bearing on the Second Amendment. Decisions of the state and lower federal courts vary widely, and no conclusions could be drawn from them except in certain individual states. The US Supreme Court apparently has never ruled clearly on whether the Fourteenth Amendment extends the prohibitions of the Second Amendment to the state governments. On the other hand, all relevant Supreme Court decisions seem to recognize that the individual right to keep and bear arms is fundamental, and existed prior to the adoption of the Constitution. If and when the Supreme Court finally does rule definitively, we can only hope that they will ignore neither the intentions of the Framers of the Constitution and Fourteenth Amendment, nor the precedents of their own court.