At the top of the collective consciousness of late is often the argument over the rights of U.S. citizens to bear arms and just how far reaching that right may be. I wanted to provide some of my thoughts on the matter.
In full disclosure I will state that I am a supporter of the right to bear arms and do not support the banning or restriction of certain firearms simply based on their external architecture and ergonomics which have no bearing on the mechanical operation. With that being said I thought I would provide my thoughts in regard to some of the opinions I’ve run across in discussing the matter of the citizens’ right to bear arms and proposed gun control policies.
First we shall refer to the Second Amendment of the United States Constitution. It 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.”
There have been many in the firearms debate that claim that the amendment applies only to the standing military or proxy forces such as the National Guard or State Guards and does not extend to the private citizen. Based upon this interpretation some people have argued that disarmament of the people is within the rights of the governing bodies.
In 2008 the SCOTUS in the case of District of Columbia v. Heller held that, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” (District of Columbia v. Heller).
Two years later in 2010 the Court ruled that this right supersedes any statute imposed by individual States meaning that States cannot outright ban all firearms from the people.
But, what of the militia?
During a debate in Virginia, James Madison comments that each State has its own militia:
“If ever America should be attacked, the states would fall successively. It will prevent them from giving aid to their sister states; for, as each state will expect to be attacked, and wish to guard against it, each will retain its own militia for its own defence [sic]”.
Mr. Madison goes on to explain that the Congress shall also have power to retain the state militias in time of need. George Mason then addresses exactly who the militia is, he states:
“Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians and by our representation? I ask, who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day.”
Mr. Mason said this because the militia was an integral feature during that time. Were it not for the volunteer citizens during the War for Independence as well as aid from France, we may have very well not become a sovereign nation. Mr. Mason goes on to wonder about the future militia and its composition and worries that it will become a group of only lower and middle class people and the more affluent individuals would be exempt from participating if the Constitution is not ratified.
Some people have made the claim, as is often heard and in relation to the claim of who is permitted to bear arms that the “militia” refers to the standing Army, National and State Guards and the private citizen is not part of any “militia”.
The SCOTUS touched on this in District of Columbia v. Heller as well stating:
“The prefactory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all male physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”
To satisfy criticism, yes, there were two written dissents in that case. The dissent written by Stevens was quite long and did acknowledge a lot of history regarding the debate of who the militia members were and who would regulate them. However, Stevens’ dissent focuses primarily on the point of who had the authority to regulate the bearing of arms by the people. That theme is made evident in the last paragraph of his dissent when he states:
“The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framersmadea choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice”.
The dissent written by Breyer was similar in concern regarding authority to regulate bearing of arms of the citizens and not who comprises the militia or if citizens have the right to bear arms at all.
Next we have the Militia Act of 1903 which created two distinct categories of militia – “organized” and “unorganized”. The organized militia would be the National and State Guard. It actually wasn’t until later that Congress applied dual enlistment to the National Guard where a member of the National Guard is also concurrently a member in the U.S. Army. This distinction of who makes up the unorganized militia was also carried over into the National Defense Act of 1916 as well. Subsequently, the definition of who comprises the unorganized militia has not changed – it is the citizens of the United States, the people.
So why does the idea of a militia in the present day have a bad connotation? The problem comes when citizens form their own organized militias and carry out activities which may break other standing laws. It is not illegal for a group of folks to get together to train in use of their firearms or even in development of tactical skills. It becomes problematic when such activities are tied to some type of destructive goal or behavior. There are several examples in recent history, however the reasoning supporting some of the actions of the authorities in some of these matters are argued as being dubious. It is difficult in some instances to make a case between simple talk, posturing and actual verifiable threats. One case in 2010 was the Christian militia in Michigan named Hutaree. The members trained in preparation for a perceived coming battle with the Antichrist. The FBI reacted when they allegedly made plans to stage a revolt and attack police officers and commit other violent acts. One of the red flags was that the group practiced “survivalism” which is an odd thing to be weary of yet many Law Enforcement Agencies view it as being associated with organized, anti-government groups.
An undercover FBI agent established contact with the members and was exposed to their extreme religious and political views as well as their plans to commit violent acts. In this capacity, yes, a red flag should go up. However, at trial, most of the members were acquitted of all charges. Two members were sentenced for weapons-related charges, specifically the possession of an NFA weapon without proper license and/or registration.
Militia Concept in the Public Consciousness
When someone mentions the word “militia” to the average person on the street, it will often be associated with paramilitary groups holding extremist ideals. Much of this is the result of the growth of politically centered militia groups in the 1990s many of which formed as a result of the incidents at Ruby Ridge and outside of Waco, Texas with the Branch Davidians. After it was found out that Timothy McVeigh and Terry Nichols both had ties to armed groups, this further sullied the concept of the citizen militia.
However, in 1999 a U.S. Department of Justice report which analyzed the threat of militias determined that most militias pose no threat. Later, in an FBI report in 2000 found that, “the majority of militia groups are non-violent and only a small segment of the militias actually commit acts of violence to advance their political goals and beliefs”. As with many things, the action of a few extremists corrupts the idea of a group for the law-abiding majority.
Well-Armed Militia? Armed with What?
As the private citizen can be considered part of the citizen militia and therefore may possess firearms the question then becomes, what arms can we bear? Many have stated that the arms referred to in the amendment are muskets (the primary rifle of the day) and therefore only applies to muskets so there is no constitutional basis for possessing a semi-automatic rifle, most often referring to an AR-15, Kalashnikov or variant rifle. It is doubtful that most people would object to your wood stocked Ruger 10/22. However, put a polymer tactical stock on it and suddenly they might.
So what does the SCOTUS think? Well, they didn’t really deviate much from precedent in their mention of the type of weapons. They stated in Heller:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
This means that they further interpreted the Court’s decision in the United States v. Miller case that the rights extend past muskets and to the arms “in common use at the time”. In common use would be things like semi-auto handguns, semi-automatic rifles, manual bolt action rifles, pump shotguns, auto-loading shotguns, et cetera. These are common use arms in the current time. However, in the decision in Heller, they also uphold the previously established “longstanding” rules (that is the 1934 National Firearms Act and the 1968 Firearms Owners Protection Act) especially in regard to who may be restricted from possessing a firearm such as convicted felons, those convicted of domestic violence and those diagnosed with a mental illness.
Therefore, we have established that the right to bear arms is a right of all U.S. citizens and that it applies to common modern day firearms. The SCOTUS has clarified that for us in Heller.
In the recently renewed debate regarding what kind of firearms we as citizens may bear, the issue of the so-called “assault rifles” has been pushed into the fray due to high profile mass shootings. However, for many, an opinion regarding the banning of certain rifles has been based upon inaccurate information due to mistakes made primarily in the media and the decision to use particular descriptive words.
Along with the “Second Amendment only applies to muskets argument”, is the question of why would anyone need an “assault rifle” or the claim that no citizen needs an “assault rifle” to which some extend it to say that no one needs an “assault rifle” for hunting.
First, let’s examine what is meant by “assault rifle”. Well, the problem is that it does not have a specific or widely used definition. An assault rifle has usually been defined by folks such as the military and firearm manufacturers as a selective fire (it has the capability of burst or automatic fire) rifle that uses and intermediate cartridge (like the 5.56 NATO and not something huge like a .50BMG) and is fed through a detachable ammunition magazine or ammunition belt. This definition is based upon the actual mechanical operation of the weapon. This differs from the definition of “assault rifle” as it appears in legislation such as the 1994 Public Safety and Recreational Firearms Use Protection Act. In that legislation, an assault rifle is defined as including semi-automatic rifles which possess cosmetic features that resemble selective fire rifles such as those employed by the U.S. military.
Automatic weapons (and subsequently select fire weapons) were restricted heavily under the 1934 National Firearms Act and further under the 1968 Gun Control Act and the Firearm Owners Protection Act of 1986. Such weapons are considered Title II or NFA firearms. In order to possess one of these weapons they must be registered with the ATF, an extensive background check is performed and a $200 tax is imposed on the transfer or manufacture of each Title II firearm. Some states have complete bans on ownership of all Title II firearms. Also, under these restrictions, it is generally illegal for a citizen to possess a selective fire weapon that was manufactured after 1986. On top of that, acquiring such a weapon for private use is extremely cost prohibitive. It is not uncommon for a selective fire AR style or Kalashnikov style rifle to easily fetch $10,000.00 USD or more. Therefore, individuals who make claims such as, “automatic weapons should not be easily bought on the internet by anyone who wants one” (actual argument I’ve heard), display their ignorance regarding standing firearms legislation while advocating additional firearms legislation.
The focus of the 1994 ban and current efforts are regarding semi-automatic rifles – one shot per trigger pull. To qualify as an assault rifle under the 1994 act a firearm must be a semi-automatic rifle able to accept detachable magazines and possess two of the following cosmetic features:
- Folding or telescoping stock
- Pistol grip
- Bayonet mount (lug)
- Flash suppressor, or threaded barrel designed to accommodate one
- Grenade launcher
Those are the criteria. The rationale for such is questionable. More on this in a bit.
Next, we’ll address the “need” question – why would anyone need an “assault rifle”. Well, as we see now, selective fire assault rifles (battle rifle is actually a more accurate term) are heavily regulated and not something you can simply walk in and buy at Wal-Mart. Some of you may laugh but many people do not know this information. As for the semi-automatic rifle which is not a selective fire weapon, it can fill various roles. It is really not a matter of need per se. Let’s use the example of the often mentioned AR-15 style rifle.
What do I mean by AR-15 style rifle? The rifles most people refer to as an AR-15 is not an actual AR-15. AR-15 is a type of weapon manufactured by the ArmaLite Inc. firearms manufacturer. That is what AR stands for – ArmaLite model 15. The rifle was designed by Eugene Stoner, Jim Sullivan and Bob Fremont at ArmaLite with the first prototype built in 1959. The design was simply a modified version of their AR-10 rifle. ArmaLite eventually sold the design to Colt which made some modifications and pitched it to the Army as their new battle rifle in the early 60’s.
For many applications the AR-15 style rifle is an excellent choice: it’s semi-automatic, ergonomic, chambered in a somewhat inexpensive rifle round and is accurate for up to 400-500 yards (unmodified). Due to the modularity and ease of customization of the AR system, it can serve multiple roles just by changing the accessories: hunting, target and competition shooting, home defense, ranch rifle, et cetera.
As an analogy, think of my situation when putting together a computer desk. The desk had some screws which were a tight fit and I was using a small cheap screw driver that came with the set. After applying some pressure and twisting these screws into place I noticed that the head of the screwdriver had become gnarled and my forearm was aching from twisting so many screws. I decided to go to Lowe’s and purchase a better tool for the job. I picked up a Kobalt ratcheting screwdriver and sailed through the completion of the desk. That tool was the same tool essentially, but it had features that made it an even better implement for me to use.
Now, that’s just a computer desk but when it comes to the issue of home defense, hunting, target shooting and so forth would it make more sense to buy several different firearms or simply buy a weapon that can perform well in all those roles?
This also addresses the question of who would need an “assault rifle” for hunting. The AR style rifles have gained great prominence in hunting from hogs to deer. Again, this is due to its modularity and ease of customization among other benefits of using a semi-auto rifle as opposed to the traditional “bolt-action” rifle usually associated with hunting. However, such scoped manual bolt action rifles are now being referred to in the media not as “hunting” or “deer” rifles but erroneously as “sniper” rifles. It is a similar semantic tactic that was used to label AR and AK style rifles as “assault rifles”. There is no distinction made in such situations between what makes a bolt action rifle differ from a “sniper” rifle other than military scout/snipers have traditionally utilized modified scoped bolt action rifles. However, semi-automatic rifles such as the AR platform and the large .50 caliber rifles have gained prominence for such applications especially during the wars in Iraq and Afghanistan.
So we now have established the right of citizens to bear arms and that the Second Amendment applies to the right to carry common weapons of the day. We have also established that the “assault rifles” as they are described in the 1994 Public Safety and Recreational Firearms Use Protection Act do fill many roles that citizens may see a need for in their lives. Therefore the question now becomes one of why is there such a push to ban and/or restrict these semi-automatic modern sporting rifles? The reason does not have a solid, logical basis and is infected more by political motives than as a strategy for intervention of a viable threat to public safety.
Why the focus on AR-15s?
Indeed, why the focus on AR-15s? For one the rifles are widely popular and such rifles were used in two recent mass shootings. The rifles were also named specifically in the 1994 act as well.
What actually makes the rifle dangerous? According to the 1994 act, it is those characteristics I listed earlier. Reread the list and see which features might be the cause of alarm. Of special note would be the “grenade launcher” criterion which actually only applied to modifications of a barrel to launch munitions and not externally attached modules like the M203 apparatus. You won’t find any AR on the commercial market with an integrated “grenade launcher”.
How about the folding or collapsible stock? Many ARs have a six position adjustable stock which is put in the category of “collapsible stock” by the 1994 legislation. Folding stocks aren’t often seen on ARs and mostly occur on Kalashnikov variants. So what makes that characteristic dangerous? It could be argued that concealment may be an issue yet the best weapon for concealment is a handgun and in some reports on the efficacy of the 1994 ban, that was the exact reason. However, for concealment, a handgun would be a better choice. It is this exact reason why most homicides are made with handguns – size.
What about the pistol grip – an ergonomic characteristic to give the hand better placement upon the weapon to operate the trigger. So does it make the rifle more dangerous because your hand is more comfortable?
What about the bayonet mount? Some may not know what a bayonet is. A bayonet is a fixed blade knife that can attach to the end of the rifle (if it has the bayonet mount) thereby turning the rifle into a sort of spear weapon. Spears on the other hand are not restricted at all and I can order one and have it shipped by UPS to my front door. I suppose if my spear had a pistol grip it would be considered an “assault spear”.
What about the flash suppressor? Again, some may not know what that is. The flash suppressor also called a flash hider or guard is an attachment at the end of the barrel of a rifle to reduce what is called muzzle signature or muzzle flash. The muzzle signature is the flash produced by the firing of the projectile. This serves a couple of functions such as aiding in the retention of night sight in dark or low light situations and some flash suppressors utilize the vented gases to apply a downward pressure on the end of the barrel to reduce the muzzle rise due to recoil. Does less muzzle-flip and muzzle flash make the AR style rifles more dangerous than other semi-auto rifles?
These features do not make the weapon any more or less dangerous than any other semi-automatic rifle. The association of the rifles with military service rifles, being associated with the previous 1994 ban and use in recent mass shootings has branded them dangerous in the public mindset as illogical as that may be.
Other than use in recent mass shootings, the AR style rifles and rifles in general are rarely used in firearm related homicides. The overwhelming numbers of firearm homicides are done with handguns. According to the FBI, in 2011 handguns accounted for 8,583 murders while rifles (that’s all rifles not just AR-15s) accounted for 323. By way of comparison, more people were killed using just hands, fists and feet than were killed with rifles. Personal weapons (hands, fists, feet, etc.) murdered 728 people in 2011. You are more likely to get punched to death than to be killed by a rifle. If you include clubs, hammers and knives into the number it raises to 2,918. If I put a pistol grip on my hammer does it become an assault hammer?
People are sucked into a particular concept of the black, semi-auto rifles because they associate them with the military and have a distorted idea of what the rifles are and how they operate. Let me provide an example. The most popular .22LR rifle on the planet is the Ruger 10/22. It has been around since 1964 and many people have learned to shoot with this rifle.
Just looking at a stock 10/22, it looks like what most people would think of as an unassuming semi-automatic rifle. Definitely not scary looking like the AR’s right? No real feelings of fear from that rifle.
What about looking at this rifle?
It’s all black, detachable magazine, folding stock, carry handle, Picatinny rails, hand guard, pistol grip…looks like it an “assault rifle”. However, those pictures are of the exact same rifle. The ONLY difference is the cosmetics. Nothing about the function of the rifle has changed, just how it looks. Both still shoot the exact same, tiny .22LR round. The AR style rifles mostly fire another 22 caliber round as well, the .223 Remington round. It’s not a larger caliber; it’s actually quite small compared to the round used in the M16’s predecessor, the M14. The M14 used the much larger .308 Winchester round.
Both the .22LR and .223 Remington are 22 caliber rounds. The caliber refers to the diameter of the bullet itself measured in millimeters or hundredths of an inch. The difference is in the size of the cartridge and the amount of gun powder it contains. Both bullets are nearly identical in diameter 0.223 inches for the .22LR and 0.224 inches for the .223 Remington or 5.7mm in metric measurement.
’94 Ban Effect on Crime
Some proponents of reinstating an “assault weapons” ban base their reasons upon the claim that the 10 year ban which expired in 2004 had a measurable effect on violent crime with firearms. One of the biggest proponents for reinstatement of the ban is California Senator Diane Feinstein.
Senator Feinstein’s website links to reports which she claims supports the efficacy of the 1994-2004 ban. One such report from the Urban Institute in 1997 (if anyone actually bothers to read it) stated that they believe the ban was responsible for a 6.7% decrease in gun murders in 1995 “relative to a projection of recent trends”. First the 6.7% is meaningless without a context and it is compared to a projection and not actual hard data. Even so, the authors themselves admitted, “the evidence is not strong enough for us to conclude that there was any meaningful effect”. The report also admits that the banned weapons were rarely utilized in crimes, stating, “…the absence of stronger ban effects may be attributable to the relative rarity with which the banned weapons are used in violent crimes”. So the exact article Senator Feinstein links to on her site and which she claims supports the effectiveness of the 1994 ban basically stated the ban, at that time, didn’t really show any effect. The Senator like many other politicians is not being completely honest and betting on the intellectual laziness of most people to just accept what’s posted on her site. Another report cited she claims stated that the ban was effective. However, the “big reduction” they report is in relation to “assault pistols”, that is weapons such as Uzis and Tec-9s. Uzis were of limited availability even prior to the ban due to an import restriction. Both Uzis and Tec-9s utilize primarily handgun rounds like the 9mm. The only feature making them any different from other pistols was the large capacity of their factory magazines and their open bolt design.
Most homicides where firearms are used are committed with handguns. The report even states, “there has not been a clear decline in the use of ARs [assault rifles], though assessments are complicated by the rarity of crimes with these weapons…” In all the areas surveyed for the report (Baltimore, Miami, Milwaukee, St. Louis and Anchorage) the percentage of “assault weapons” recovered by police accounted for no more than 6% of all recovered weapons. To put that into perspective, if the police in Baltimore recovered 100 firearms utilized in violent crimes, “assault weapons” would have accounted for 6 of those weapons and not all of those weapons were AR style rifles, it included all of the so-called “assault weapons”.
So, the reports the Senator cites as support for the ban which made a point to target AR type rifles state that the use of such rifles in violent crimes was not only rare before and during the ban but also didn’t show any detectable change. Other reports found the same thing. A CDC task force report in 2003 stated:
“The following laws were evaluated: bans on specified firearms or ammunition, restrictions on firearm acquisition, waiting periods for firearm acquisition, firearm registration and licensing of firearm owners, “shall issue” concealed weapon carry laws, child access prevention laws, zero tolerance laws for firearms in schools, and combinations of firearms laws. The Task Force found insufficient evidence to determine the effectiveness of any of the firearms laws or combinations of laws reviewed on violent outcomes.”
Specifically, in relation to weapons and ammunition bans, the Task Force found mixed reports and did not observe any discernible trend or any significant tendency in the data to say that firearm bans have any real effect.
We have the right to bear arms. We have the right to bear arms that are in common use at the time. ARs are very common at present. The previous ten year ban on the type of ARs available now had no measurable effect on violent crime (the supposed purpose of the ban itself) because such weapons were so rarely used. The rifle has many legitimate uses in sporting and defense applications and has become widely used for such pursuits. So why would anyone think banning those rifles again would really do much of anything? It won’t.
It’s not about the actual effect; it’s about the illusion of action. People want retribution for such horrid acts committed by the likes of Holmes and Lanza. Lanza is already dead and Holmes is most likely gripped by psychosis. So what is the next best thing for the government to do when the people cry for action? Simple, do something that you know really won’t amount to any real change but superficially seems like you’ve done something profound to answer their call to action.
In nearly every mass shooting incident, the shooter had a history of mental health issue. In the recent cases of the shooters in Connecticut and Colorado and in previous cases including the shooter who nearly killed Gabby Giffords and in the incident that led to the death of gun control proponent Rep. Carolyn McCarthy’s husband the shooters had a history of behavioral and/or mental problems.
History has shown a distinct correlation between mental health problems and mass shooters. Would these incidents have taken place if proper mental health interventions were made? It is possible. However, the current approach is to simply ask for a “national dialogue” and call for information sharing in regard to mental disorder diagnoses. Yet, the main focus is on banning weapons and ammunition magazines over 10 round capacities.
The truth is that no amount of banning, restricting or even outlawing weapons will bring those taken away back to us. No jail sentence for James Holmes or other mass shooters is large enough to truly quell the rage the families of the victims have – but to do nothing to really address the cause(s) of such horrible acts and sell the people an illusion of action is truly reprehensible.