Mark Alexander / Mar. 2, 2007

Valentine's Day Massacre (of the Second Amendment)

In some ways I’m surprised it took them this long. On Valentine’s Day, 2007, Rep. Carolyn McCarthy (D-NY) began a campaign to grab just about everything but Cupid’s arrows with the introduction of her bill, HR 1022, “to reauthorize the assault weapons ban, and for other purposes.” This is the same Carolyn McCarthy who introduced HR 297 on the first day of the new Congress, attempting the most massive expansion of the Brady Law since its 1993 passage. McCarthy’s murky definition of “assault weapons” notwithstanding, the legislation’s intent is to re-enact the 1994 Clinton gun grab, while adding a few million more firearms to the haul.

All this leads me to wonder whether the anti-gun crowd simply skips over that pesky constitutional article in our The Bill of Rights stuck right there between the First and the Third.

Under the Clinton Gun Ban, which expired in 2004 under the Republican-controlled Congress, 19 so-called “assault weapons” – in reality semi-automatic hunting and sporting rifles – were banned for having characteristics that liberals found scary: certain stocks, grips, magazines and so forth. Under that 1994 law, manufacturers could still sell these weapons if they made them look less scary to liberals; HR 1022, however, would ban them entirely.

In addition to eliminating completely the weapons covered under the Clinton law, McCarthy’s bill adds more than a few firearms to the list, including the following:

All semi-automatic shotguns; all detachable-magazine semi-automatic rifles; the most popular competition sporting rifles – including the Colt AR-15, the Springfield M1A and even today’s version of the American infantryman’s rifle of World War II, the M1 Garand; any shotgun or semi-automatic rifle having “any characteristic that can function as a grip”; any automatic fixed-magazine pistol exceeding a ten-round capacity; and any parts needed to repair or refurbish guns in circulation that are covered under the ban.

In addition, the legislation would give the Attorney General the prerogative to add any other shotgun or rifle to the list that the government ever deems not to be a “sporting” weapon. Not content with simply banning these weapons, HR 1022 also takes steps toward national firearm registration by mandating new rules for weapons and parts sales. Finally, as if all this weren’t enough, McCarthy’s bill would be a permanent ban, unlike the Clinton Ban, which expired after a ten-year trial period.

Legislation of this sort is becoming an obsession with Democrats. When the Clinton Ban was set to expire on 13 September 2004, Senators Dianne Feinstein and Chuck Schumer introduced legislation to extend and expand it. At the time, President Bush took the calculated move to commit to signing the bill if it made it through Congress – since he knew it wouldn’t. Now, with Democrats in control of both Houses, anxiously aided by anti-gun Republicans aplenty, what will the President do if HR 1022 makes it to his desk? The Patriot said at the time that the Bush administration’s 2004 strategy was arrogance and folly – and now that folly may be coming home to roost.

Perhaps this administration should focus more on the long-term effects of its action on the Constitution and less on the short-term gains to be had from “playing to the crowd.” It is the Constitution, after all – and not men – that defines the rule of law.

The Constitution’s Article Two (Second Amendment) prohibition against government interference in the “right to keep and bear arms” is the singular right that ensures all others. As noted by Justice Joseph Story, appointed to the Supreme Court by James Madison: “The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

Indeed, Madison himself wrote in Federalist No. 46, “The advantage of being armed, which the Americans possess over the people of almost every other nation … forms a barrier against the enterprises of ambition, more insurmountable than any.” This is no less true today than it was in 1787.

When Feinstein-Schumer was coming around the bend in 2004, much hay was made of the Bureau of Justice Statistics data that firearms-related crime had declined 54 percent in the last decade (that is, the period covered by the Clinton Gun Ban). The number of violent crimes reported in 2002 was 980,000 fewer than in 2000, but a National Institute of Justice report (headed by Christopher Koper at the University of Pennsylvania) concluded, “We cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

Feinstein’s own California Assistant Attorney General Patrick Kenady noted in an internal memo, “Information on [these guns] would not be sought from forensics laboratories as it was unlikely to support the theses on which the [Feinstein-Schumer] legislation would be based,” and even the Washington Post admitted that the banned guns “play[ed] a part in only a small percentage of crime.”

Like HR 1022 today, Feinstein-Schumer claimed to be aimed at the protection of law-abiding citizens from the “gun problem.” Of course, only law-abiding citizens comply with such restrictions – and at their own peril. Criminals don’t care whether the weapon they’re using comports with the 23,000 federal, state and local gun restrictions already on the books, but they do care whether their intended victim has a firearm. Indeed, extensive interviews with violent felons make it clear that they’d much rather prey on those who are least likely to possess a gun for self-defense.

In Commonplace Book, Thomas Jefferson quotes Cesare Beccaria from his seminal work, On Crimes and Punishment: “Laws that forbid the carrying of arms … disarm only those who are neither inclined nor determined to commit crimes. … Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” Again, no less true today than it has been throughout history.

Clearly, our Founding Fathers had it right. “To disarm the people is the best and most effectual way to enslave them,” warned George Mason. “Guard with jealous attention the public liberty,” implored Patrick Henry. “Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”

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