Jerome Cronk/ February 22, 2018/ Miscellaneous/ 0 comments

The Second Amendment is not absolute, as should be obvious when you consider that the government can prohibit certain weapons without infringing on Second Amendment rights.  So you and I can’t lawfully own a machine gun (fully automatic) manufactured after May 1986, or a bazooka or a rocket launcher.  And you can only own one of the remaining rare, extremely expensive pre-1986 machine guns by going through the lengthy federal application and licensing process, showing that you are a good, non-violent, law abiding citizen. Then once you were licensed the government has a record that you own a machine gun. Can we agree that this is a reasonable limitation and that we don’t want machine guns available at your local gun shop for $650.00?  There’s a limit there that is constitutional and that I think we can all agree is reasonable.  There must be and there always are reasonable limits to all constitutional rights.

Besides that, the Second Amendment is quite ambiguous and somewhat self-contradictory.  It is yet to be fully developed by the Supreme Court.  The text reads:

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.

The preface about “well regulated Militia” leaves a lot of room for speculating on how it might qualify the part about the right to bear arms.  And, as already noted, “Arms” does not include fully automatic weapons such as machine guns or other lethal weapons. The U.S Supreme Court in the 2008 case of District of Columbia v. Heller struck down Washington D.C.’s total ban on handguns, finding that a complete ban on the “quintessential self-defense weapon” was historically unprecedented and too severely diminished the core Second Amendment right for the lawful purpose of self-defense.  But the Court also cautioned that the right to keep and bear arms is limited, and regulation of the right in keeping with the text and history of the Second Amendment is permissible.  The Second Amendment, the Court said, is “not a right to keep and carry any weapon whatever in any manner whatsoever and for whatever purpose.”

So far the Supreme Court has not fully addressed the quandary of the militia preamble nor has it ruled on what weapons are considered “arms” and what level of regulation is permissible.  A number of federal appeals courts have, however, all consistently ruled that various state and municipal bans on assault weapons and high capacity magazines are constitutional.

Congress actually did in fact pass a bill outlawing assault weapons in 1994 and it was never tested in the Supreme Court.  But that law expired by its own terms in 2004 and has not been re-adopted.

Opponents of reinstituting the assault weapons ban claim that such weapons a cannot be reliably defined. It is true that the 2004 law included features that were somewhat “cosmetic”, such as a shield on the barrel or a bayonet holder. The the ambiguities of that law could be easily overcome by defining an assault weapon simply as a semi-automatic rifle with a magazine holding more than 10 rounds of ammunition, called a high capacity magazine. The pistol grip feature that was included in the law may not be purely cosmetic but could provide a functional advantage to a mass shooter.

It is important to get our terms straight. The definition of a semi-automatic weapon is a gun that fires one shot for each pull of the trigger with an automatic reload after each shot fed from a magazine or some other receptacle. The term “automatic” weapon is sometimes misused to describe what should be defined as “fully automatic,” that is, it keeps firing as long as you hold the trigger — or a machine gun.  But otherwise the term is often used to provide a generic description of any fully automatic or semi-automatic weapon.

One very necessary limit — and a reasonable one — I suggest is that assault weapons (that is, semi automatics with high capacity magazines and pistol grip) not be banned outright but they should not be possessed outside of a licensed shooting range or gun club (or a militia?). You can own one, but you just have to keep it there under lock and key at a licensed facility.  You can go there and practice shooting all you want, but you can’t take it home.

And, for those of you who are worried about someone breaking into your house at 4:30 a.m. you could still own and defend yourself with a semi automatic rifle or hand gun containing a magazine of not more than 10 rounds.  Nothing wrong with that.  There’s a huge difference between a semi-automatic rifle and an assault weapon.  The main difference is the detachable high capacity magazine that allows these school shooters to keep firing for some time without reloading.  High capacity magazines can hold from 20 to 30, to sometimes even 40 rounds.[1]  The shooter can kill a lot of people before changing to another magazine. That, along with the other military configuration or cosmetic features, is what makes these weapons so lethal to mass shooting victims and so attractive to those deranged individuals who want to inflict the highest body count in the shortest time possible.  This is the weapon of choice of mass murderers.

Are they nevertheless necessary for self defense?  Isn’t a firearm that can shoot up to 10 rounds without reloading enough?  The federal courts have consistently said so.  Most break-ins are done by hoodlums who are after your stuff but they are not looking for a gun battle.  No one needs that kind of a military fire power to defend house and home.  Besides you could ruin a lot of furniture that way, and perhaps accidentally kill someone else in your household before you cut the hapless intruder into ribbons as he tries to flee with blasts from your AR 15.

There is much debate throughout the country now about what we can and should do to protect innocent people from mass killings.  Many measures are offered and hotly argued over.  Many of them worthwhile, especially background checks, stiffer penalties and more vigorous enforcement of stolen gun laws, etc.  No single measure will afford complete protection, but that doesn’t mean that a range of measures should not be pursued simultaneously or that any should be discarded just because they would not be 100%  effective.

Of all of them, though, one thing stands out:  All of the perpetrators in the mass shootings in Columbine, Sandy Hook, the theater in Aurora, Colorado, the Pulse Night Club in Orlando, San Bernardino, the Las Vegas casino and most recently the high school shooting in Parkland, Florida – in all of these the weapon of choice was an AR 15 or some other form of assault weapon with a high capacity magazine.

Yes, it is worth noting, as critics point out, that somewhere near 20 times more deaths including suicides are caused by hand guns than semi automatic rifles but that is another matter, often involving gang and drug-related criminals.  Besides, as pointed out above, the Supreme Court has already ruled that personal possession of handguns cannot be prohibited under the 2nd Amendment.

The overwhelming weight of evidence cries out for these assault weapons to be banned or controlled in the reasonable manner I have suggested.

[1] The 1986 law banned any magazine holding more than 10 rounds

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