Go Ahead, Representative Swalwell: Make my Day

For the American Left, gun control has always been nothing more than a statist impulse in search of a reason to justify it.

And there have always been reasons they’ve offered as to why the government should prohibit Americans from owning this type of gun or that one.  Today, the talk tends to be about the AR-15, and the reason that is most commonly parroted tends to be along these lines, this one offered in a tweet by Max Boot:

There is no reason why any civilian should own an assault weapon.  And gun prohibition and buyback much more effective than a ban on further sale.

Boot tweeted this in support of the “courageous and principled stand” taken by Democrat House Representative Eric Swalwell of California, who is championing the idea of an Australia-style “buyback” of “assault weapons” such as the AR-15.

Colt AR-15 A3 Tactical Carbine (Source)

Gun control advocates are tactically referring to this proposed effort as a “buyback” for the same reason restauranteurs call the Patagonian toothfish a Chilean sea bass on their menus.  A government “buyback” of guns may sound much more palatable for the American public than a “forcible government confiscation” of firearms, but it doesn’t change the nature of the thing. 

The actual choice for Americans, under Swalwell’s proposal, would be to “sell” their guns to the government, surrender them with no recompense, or have the government forcibly confiscate them, with offenders facing prosecution or violence at the hands of government agents.  This is, of course, not a choice at all, but it presents the veneer of choice, meant to hide the constitutional rights that would be stolen from American citizens.

But what’s most amazing about all of this is the ease with which the confiscation of heretofore-legal firearms from millions of Americans is being proposed in open forums today.  It is, after all, impossibly illogical to conclude that such an action by the federal government would not be in direct violation of the Second Amendment.

The closest thing we can find to evidence suggesting that such a mass confiscation of “assault weapons” would be constitutional is offered by Swalwell in his op ed in USA Today.  He observes that the late Antonin Scalia wrote, in the Heller decision of 2008, that the right to gun ownership is “not unlimited.”  So, his logic goes, because the right is “not unlimited,” it must mean that it’s at least arguable that confiscation of “military-style” weapons by the federal government might be allowable, even though confiscation is the most egregious form of “infringement” upon firearm ownership, which the Second Amendment strictly prohibits.  After all, “[o]ur courts haven’t found a constitutional right to have assault weapons, anyway,” he writes.

Except… that’s not exactly true.  Insofar as Swalwell uses “military-style” weapons and “assault weapons” interchangeably to specifically reference the AR-15, one could easily argue that the courts have found a constitutionally protected right for Americans to own them.  In fact, it was the Supreme Court’s rationale in upholding America’s very first sweeping federal gun regulation in 1939.

It might strike many Americans as odd that the first challenge to the first sweeping gun control regulation didn’t occur until 1939.  That’s because for the majority of American history, no federal gun control legislation, imposed against all Americans, ever existed.  Regulations upon firearms had been imposed by the various states, applying only within their respective dominions, since almost immediately after the founding of America, that’s true.  But the notion of a federal gun law is a relatively new concept.  The first wide federal gun regulation did not occur until 1934 with the National Firearms Act (NFA), and like most contraventions of constitutional principles, political subterfuge was the key to passing it. 

Though it is clear that the 1934 Act was meant to limit Americans’ ability to purchase certain dangerous firearms, and it was clearly a response to rampant Depression-era gangster violence, that was not the legal rationale for the law.  A federal law limiting gun ownership, though obviously the Act’s purpose, was still believed to be entirely at odds with the Second Amendment.  It was offered as legally acceptable not because the federal government had a right infringe upon Americans’ ownership of guns, but because the federal government had a broad, seemingly illimitable ability to tax

The Act was justified as a mechanism for federal revenue (and if you’ve studied New Deal legislation for more than five minutes, you should know that nearly every new federal regulation imposed in the Depression era was justified as a revenue mechanism for the government).  It didn’t ban the Thompson machine gun outright, you see, because that could easily be construed to have run afoul of the Second Amendment.  It simply levied a tax equal to its market value, doubling its cost and thereby making it less accessible, requiring that you had fingerprints to own one, permission from local law enforcement, etc.  Because there were duties to be paid to the federal government by owners of this specific type of property, the government saw itself within its rights to regulate these weapons as a matter of ensuring the lawful collection of revenue.  It was circumvention of the Second Amendment, and nothing more.

But the law did, in fact, meet a challenge in United States v. Miller in 1939.  The subject of that case was not a Tommy gun, but an unregistered sawed-off shotgun, which had a barrel shorter than eighteen inches (and therefore in violation of the new law), and was illegally carried across state lines.

The finding of the Court is most interesting when you compare it to Swalwell’s claim that “our courts haven’t found a constitutional right” for “military-style” weapons.

The central premise of the ruling was simple, and summed up nicely here:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.  Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

The very first broad federal gun law was eventually justified by the Supreme Court on the grounds that the weapon in question for the specific case had “no reasonable relationship to the preservation or efficiency of a well regulated militia.”  In other words, a sawed-off shotgun wasn’t “military-style” enough to be constitutionally protected by the Second Amendment. In the words of the Court’s opinion.   

However, the AR-15, due to its light weight, mild recoil, heavy payload potential in terms of ammunition, accuracy, and ready availability among citizens makes it the prime example of a weapon which might have usefulness in a militia comprised of citizens, should it ever be needed.  There can be no logical rebuttal to that claim.

Miller was a bad decision, I’ll admit.  It was a bad decision because it suggests that the protections of the Second Amendment apply only to the subject of the “militia preface,” rather than the more substantive declaration that “the right of the people to keep and bear Arms, shall not be infringed.” 

What has happened since 1939 is the danger of the “slippery slope” in federal gun regulation made practical and unquestionably real, and of which we should now be supremely aware.  It was the inch that the federal government needed to steal miles of Americans’ liberty, as it later had become the inherited wisdom of Americans that declaring what guns should and shouldn’t be regulated was within the scope of the federal government’s power. 

But furthermore, beyond the previous points, Scalia’s Heller opinion didn’t necessarily abrogate the Miller decision entirely. It merely eliminated the specificity about only weapons useful in a militia being legally protected, expanding the understood constitutional protections of the Second Amendment to include weapons used for individual self-defense.

There is absolutely no reason to believe that criminals will relinquish their “military-style” weapons with the advent of a new gun confiscation law.  Undoubtedly, many criminals now own “military-style” weapons which were provided to them by the Obama administration in the scandal known as Fast and Furious.  Those guns, and millions of others like them, will still exist, irrespective of any new gun law.  As I’ve noted before, it is naïve and foolish to assume that issuing new gun-regulations upon the law-abiding will serve to regulate the lawless among us. 

So, not only is the AR-15 suitable for the purposes of a “well-regulated militia,” but they are suitable weapons for individuals’ self-defense against criminals who have, and will have, irrespective of new gun prohibitions, such weapons.

According to both the Miller and Heller rulings, there is ample evidence to conclude that Supreme Court precedent does, indeed, protect the ownership of such weapons as the AR-15.  But that will not stop gun control advocates from seeking to diminish the protections of the Second Amendment in new and radical ways like Swalwell’s proposed “buyback” in the future.

Because, again, gun control advocates are driven by a statist impulse toward government control, and they will continue to be in search of a reason to act upon it.

William Sullivan blogs at Political Palaver and can be followed on Twitter.