The Coming National Gun Ban โ€“ and How the States Can Resist

The law of averages predicts that at some time in the future, perhaps as soon as 2017, the Democratic Party will once again control the White House and majorities in both houses of Congress. When that happens, the next Democratic president -- be it Hillary Clinton or someone else -- will sign into law a sweeping, foreign-style gun ban.

The legislation has already been written. H.R. 4269 would enact a national, permanent ban on the manufacture and sale of so-called “assault weapons” and all firearm magazines capable of holding more than 10 rounds. The bill, introduced last December, already has149 Democratic co-sponsors (218 are needed to pass the House).

H.R. 4269 would ban all AR-15 and AK-type rifles and all civilian versions of military rifles produced anywhere in the word within the past 60 years or so. The bill would also ban all parts kits, stripped receivers, “bump-fire” stocks, thumbhole stocks, trigger cranks, so-called “compliant” rifles, and “any… characteristic that can function as a [pistol] grip.” Law enforcement is exempt from the bill’s provisions.

H.R. 4269 is not a “kick down the door and confiscate ‘em” bill. Existing rifles and magazines are “grandfathered” (but the transfer of existing magazines is permanently prohibited). Gun banners know that it is literally impossible to perform a door-to-door gun confiscation in a nation of 300 million people, and that any attempt to do so would certainly be met with violence. Consequently, they have pre-empted the “Come and take it” crowd by employing a long-term strategy. Once the manufacture and sale of certain weapons is prohibited, it is only a matter of time before the legislation would be amended to outlaw the transfer of “grandfathered” rifles as well as magazines, thus enacting a de facto confiscation within a generation.

Although banning “assault weapons” is a Democratic proposal and a plank that Hillary Clinton has campaigned upon (she called the National Rifle Association an “enemy” along with Iran) it should not be assumed that all Republicans would oppose it. Republican presidential hopefuls Chris Christie, John Kasich, and Rudy Giuliani have all supported gun control in the past.

The impetus to push such legislation through Congress would likely come from a high-profile shooting or terrorist act that, like the Reichstag fire, would receive extensive media attention and provide the propaganda necessary for gun controllers like Chuck Schumer, the next Democratic Senate Majority Leader, to enact their pre-existing agenda. Republicans might find themselves accused of being “soft on terrorism” if they voted against gun control after such an event. Indeed, President Obama’s Secretary of Homeland Security, Jeh Johnson, has already stated publicly that domestic gun control is necessary as an anti-terrorism measure.

But banning “assault weapons” has nothing to do with combatting terrorism, or, for that matter, garden-variety street crime. It is a well-established fact that “assault weapons” (and long guns in general) are used in only the tiniest fraction of crimes. Handguns are used in nearly all street crimes committed with firearms. Furthermore, it’s entirely possible for a homicidal maniac to commit a mass shooting with a “sporting” arm. In Great Britain, a deranged individual killed 12 people with a licensed, registered bolt-action rimfire rifle -- after semi-automatics and handguns were banned and confiscated in that nation. And in Norway, where “assault weapons” had also been banned, Anders Breivik murdered 77 people, most of them with a Ruger Mini-14 sporting rifle. Both of the rifles used in those crimes are specifically exempted from H.R. 4269.

If banning “assault weapons” has nothing to do with crime or terrorism, why are the Democrats so eagerly in favor of it? The answer is that they have a Hobbesian worldview, in which an all-powerful “Leviathan” government has a complete monopoly on the exercise of power. The Founders recognized that military-quality arms, not sporting arms, are an indispensable tool for challenging government oppression. Contemporary Democrats, who reject the Founders’ teaching, believe that such arms must be banned precisely because they can be used to challenge Leviathan’s authority.

If H.R. 4269 or a similar bill becomes law, do not expect the Supreme Court to come to the rescue and strike it down. If there is a Democratic president and Democratic Senate next year, the vacancy on the Supreme Court created by the death of pro-Second Amendment justice Antonin Scalia will certainly be filled by a liberal, anti-gun justice. And there is a significant likelihood that aging justices Ginsberg, Kennedy, and Breyer could also be replaced by the next president. Their seats would undoubtedly also be filled by anti-gun, left-wing jurists.

If the Supreme Court upholds a national “assault weapons” ban, what recourse do the people have? In deep-blue “liberal” states like New York, California, Massachusetts and Connecticut, the answer is “None.” These states have already enacted legislation nearly identical to H.R. 4269, with very little opposition and widespread public support.

But conservative, pro-gun “red” states might have one final ace in the hole.

Liberal gun-banners have long held the position that the Second Amendment only protects the right of state militias to bear arms, and that such a right does not extend to the general public not enrolled in the militia. Justice Scalia destroyed that argument with a close textual analysis of the Second Amendment in the landmark gun-rights case District of Columbia v. Heller. But in a virulent dissent, Justice John Paul Stevens reiterated the liberal “only militias can have guns” interpretation.

Should Stevens’s dissent become the majority opinion in a future case, conservative, pro-gun state legislatures could turn the “militias only” argument against the gun-banners by passing legislation expanding the membership of their state militias to all adult residents of the state, and specifically empowering all adults to purchase military-style semi-automatic rifles and magazines capable of holding more than ten rounds.

Were such a scenario to occur, the Federal government might try to suppress the arming of the newly-redefined state militias by banning arms and ammunition sales to them through the Interstate Commerce Clause. Such action would precipitate a constitutional crisis between the states and the Federal government.

Of course, the possibility that the Federal government would cause a national crisis by suppressing the right of the people to keep and bear arms is the very reason why the Founders wrote the Second Amendment in the first place. Will there be a sequel to the “shot heard ‘round the world” on April 19, 1775?

We might be about to find out.

The law of averages predicts that at some time in the future, perhaps as soon as 2017, the Democratic Party will once again control the White House and majorities in both houses of Congress. When that happens, the next Democratic president -- be it Hillary Clinton or someone else -- will sign into law a sweeping, foreign-style gun ban.

The legislation has already been written. H.R. 4269 would enact a national, permanent ban on the manufacture and sale of so-called “assault weapons” and all firearm magazines capable of holding more than 10 rounds. The bill, introduced last December, already has149 Democratic co-sponsors (218 are needed to pass the House).

H.R. 4269 would ban all AR-15 and AK-type rifles and all civilian versions of military rifles produced anywhere in the word within the past 60 years or so. The bill would also ban all parts kits, stripped receivers, “bump-fire” stocks, thumbhole stocks, trigger cranks, so-called “compliant” rifles, and “any… characteristic that can function as a [pistol] grip.” Law enforcement is exempt from the bill’s provisions.

H.R. 4269 is not a “kick down the door and confiscate ‘em” bill. Existing rifles and magazines are “grandfathered” (but the transfer of existing magazines is permanently prohibited). Gun banners know that it is literally impossible to perform a door-to-door gun confiscation in a nation of 300 million people, and that any attempt to do so would certainly be met with violence. Consequently, they have pre-empted the “Come and take it” crowd by employing a long-term strategy. Once the manufacture and sale of certain weapons is prohibited, it is only a matter of time before the legislation would be amended to outlaw the transfer of “grandfathered” rifles as well as magazines, thus enacting a de facto confiscation within a generation.

Although banning “assault weapons” is a Democratic proposal and a plank that Hillary Clinton has campaigned upon (she called the National Rifle Association an “enemy” along with Iran) it should not be assumed that all Republicans would oppose it. Republican presidential hopefuls Chris Christie, John Kasich, and Rudy Giuliani have all supported gun control in the past.

The impetus to push such legislation through Congress would likely come from a high-profile shooting or terrorist act that, like the Reichstag fire, would receive extensive media attention and provide the propaganda necessary for gun controllers like Chuck Schumer, the next Democratic Senate Majority Leader, to enact their pre-existing agenda. Republicans might find themselves accused of being “soft on terrorism” if they voted against gun control after such an event. Indeed, President Obama’s Secretary of Homeland Security, Jeh Johnson, has already stated publicly that domestic gun control is necessary as an anti-terrorism measure.

But banning “assault weapons” has nothing to do with combatting terrorism, or, for that matter, garden-variety street crime. It is a well-established fact that “assault weapons” (and long guns in general) are used in only the tiniest fraction of crimes. Handguns are used in nearly all street crimes committed with firearms. Furthermore, it’s entirely possible for a homicidal maniac to commit a mass shooting with a “sporting” arm. In Great Britain, a deranged individual killed 12 people with a licensed, registered bolt-action rimfire rifle -- after semi-automatics and handguns were banned and confiscated in that nation. And in Norway, where “assault weapons” had also been banned, Anders Breivik murdered 77 people, most of them with a Ruger Mini-14 sporting rifle. Both of the rifles used in those crimes are specifically exempted from H.R. 4269.

If banning “assault weapons” has nothing to do with crime or terrorism, why are the Democrats so eagerly in favor of it? The answer is that they have a Hobbesian worldview, in which an all-powerful “Leviathan” government has a complete monopoly on the exercise of power. The Founders recognized that military-quality arms, not sporting arms, are an indispensable tool for challenging government oppression. Contemporary Democrats, who reject the Founders’ teaching, believe that such arms must be banned precisely because they can be used to challenge Leviathan’s authority.

If H.R. 4269 or a similar bill becomes law, do not expect the Supreme Court to come to the rescue and strike it down. If there is a Democratic president and Democratic Senate next year, the vacancy on the Supreme Court created by the death of pro-Second Amendment justice Antonin Scalia will certainly be filled by a liberal, anti-gun justice. And there is a significant likelihood that aging justices Ginsberg, Kennedy, and Breyer could also be replaced by the next president. Their seats would undoubtedly also be filled by anti-gun, left-wing jurists.

If the Supreme Court upholds a national “assault weapons” ban, what recourse do the people have? In deep-blue “liberal” states like New York, California, Massachusetts and Connecticut, the answer is “None.” These states have already enacted legislation nearly identical to H.R. 4269, with very little opposition and widespread public support.

But conservative, pro-gun “red” states might have one final ace in the hole.

Liberal gun-banners have long held the position that the Second Amendment only protects the right of state militias to bear arms, and that such a right does not extend to the general public not enrolled in the militia. Justice Scalia destroyed that argument with a close textual analysis of the Second Amendment in the landmark gun-rights case District of Columbia v. Heller. But in a virulent dissent, Justice John Paul Stevens reiterated the liberal “only militias can have guns” interpretation.

Should Stevens’s dissent become the majority opinion in a future case, conservative, pro-gun state legislatures could turn the “militias only” argument against the gun-banners by passing legislation expanding the membership of their state militias to all adult residents of the state, and specifically empowering all adults to purchase military-style semi-automatic rifles and magazines capable of holding more than ten rounds.

Were such a scenario to occur, the Federal government might try to suppress the arming of the newly-redefined state militias by banning arms and ammunition sales to them through the Interstate Commerce Clause. Such action would precipitate a constitutional crisis between the states and the Federal government.

Of course, the possibility that the Federal government would cause a national crisis by suppressing the right of the people to keep and bear arms is the very reason why the Founders wrote the Second Amendment in the first place. Will there be a sequel to the “shot heard ‘round the world” on April 19, 1775?

We might be about to find out.