Republicans and the Courts Are Destroying the Second Amendment in Ways Democrats Can't
April 13, 2018
Remember some months back, when gun owners, feeling unprecedented confidence in a "pro-gun" president and majorities in both houses of Congress, thought that national concealed carry reciprocity and removal of suppressors from National Firearms Act tax and registration requirements would be the first of anticipated gun-rights victories? We were on a roll, and it seemed like we would finally be the ones enjoying some of those incremental successes the gun-grabbers have been racking up for years. Plus, Hillary wasn't president, so we'd not only put an end to Obama-style executive infringements, but we also now had a guy in the White House promising federal and Supreme Court nominees would be vetted constructionists along the lines of the late Justice Antonin Scalia. Things were starting to look up!
Except, they weren't really. Note NRA "A+"-rated and endorsed House Speaker Paul Ryan's name isn't listed on the Hearing Protection Act as a co-sponsor, and the bill remains stuck in committee, effectively dead in the water. Likewise, reciprocity wasn't going anywhere under Ryan's "leadership" according to Rep. Thomas Massie, who last September informed Armed American Radio host Mark Walters, "The Speaker told me he didn't think the timing was right."
Things start to unravel
Raging blood dances after the Las Vegas Mandalay Bay murders in October turned the nation's focus back to citizen disarmament. A close-to-the-vest investigation that still feels more like authorities are interested in protecting connected interests than in sharing details has lead to no shortage of speculations and "conspiracy theories," especially after authorities changed stories and timelines.
With "celebrities" like has-been nepotism-beneficiary Nancy Sinatra calling for "murderous members of the NRA [to] face a firing squad," The New York Times screaming, "Repeal the Second Amendment" overtly on its op-ed page (and covertly in its "news"), and Nancy Pelosi in her brain-freeze dotage finally admitting to a "slippery slope" for gun grabs, the Republican "leadership" quickly fell into its standby "something must be done" mode.
A bumpy road
Even though so much remains unknown, a convenient scapegoat presented itself in the form of "bump fire stocks" reportedly found in the killer's hotel room. Throw them under the bus, reasoned "moderates" and CYA industry factions, and we can defuse demands for more.
That always works in nature, see. If you ever find yourself surrounded by a pack of starving hyenas, throw them a scrap of meat, and see for yourself how quickly they move on to other matters.
"The Department of Justice (Department) proposes to amend the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulations to clarify that 'bump fire' stocks, slide-fire devices, and devices with certain similar characteristics (bump-stock-type devices) are 'machineguns' as defined by the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA), because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger," a rulemaking proposal currently posted to the Federal Register for public comment declares.
The proposed ban has the blessings of the National Rifle Association, the National Shooting Sports Foundation and the Sporting Arms and Ammunition Manufacturers' Institute, and thanks to their green lights, no shortage of "Republicans," including President Donald Trump and Attorney General Jeff Sessions.
"The Department has determined...there is no way by which the possessor may register a firearm retroactively, including a firearm that has been reclassified," the proposed rule mandates. "Further, U.S.C. 922(o) prohibits the possession of machineguns that were not lawfully possessed before the effective date of the statute. Accordingly, if the final rule is consistent with this [notice], current possessors of bump-stock-type devices will be obligated to dispose of these devices. A final rule will provide specific information about acceptable methods of disposal, as well as the timeframe under which disposal must be accomplished to avoid violating 18 U.S.C 922(o)."
These are non-negotiable terms of surrender, dictated by a "pro-gun" president, a "pro-gun" attorney general, and enabled by our "gun-rights leaders." Obey or be destroyed. Or as men standing on a green were reportedly ordered back in 1775, "Throw down your arms, ye villains, ye Rebels, Disperse!"
And if legal redefinition can be done by arbitrary, politically-motivated fiat on such "devices," it can be done with anything. Nobody really thought this was just about "bump stocks" that most gun owners don't own or care about, did they? And what do our "leaders" think the Democrats will do with such newly-usurped executive "authority" when they're in power?
The 'Fix' is in
"Just one record that's not properly reported can lead to tragedy, as the country saw last week in Sutherland Springs, Texas," "A+"-rated Sen. John Cornyn declared in a November press release touting the virtues of "Fix NICS," a bill promising "to Enhance Compliance, Ensure Accuracy of Existing Background Check System for Firearms Purchases." That also has NRA and NSSF approval, even though the Texas failure cited was the result of not following existing rules.
If that's the case, what Cornyn and his NRA supporters are saying is that citizen disarmament works. That's not only wrong, but it contradicts the NRA's previously-stated position that it does not. Further, with that admission, they have just thrown private sales under the bus, because if they really believe "just one record" is all it takes, how can they turn around with a straight face and oppose "universal background checks"?
My belief is that will be a concession offered up eventually. My feeling, due to discussions I was privy to after Sandy Hook, was that was a hill they wanted to green light a surrender on, but couldn't without risking a member revolt. But that doesn't mean they won't keep trying when the time is right- on concessions made before Mandalay Bay, like "mental health" blanket dragnets (again, pushed by Cornyn), and on "No Fly/No Buy" (offered up by "A+"-rated Marco Rubio).
Then came Parkland
"But wait, there's more!" late TV pitchman Billy Mays used to exclaim in his direct-response advertising infomercials. Anyone who can't see that more "gun-free zone" killings are inevitable and will drive the emphasis of the disarmament lobby from here on in, is obtuse enough for it to be considered a disability. The Astroturf-funded and organized children's crusade arising from the Stoneman Douglas High School atrocities has thrown gun owners into the middle of an eye-rolling shark feeding frenzy.
The gun-grabbers and their media amplifiers were ready this time too - as Rahm Emanuel recommends, "You never want a serious crisis to go to waste." They had a core of articulate and "progressively" indoctrinated teenagers who, by virtue of having survived, have been declared off-limits to the types of criticism adults proposing the treasonous disarming their countrymen deserve (and that's what it is if you consider Founding intent behind the Second Amendment). So, totally expectedly, once more our "staunch supporters" in the Republican party are offering up the next round of concessions to make the left stop calling them extremists, fascists and racists â€“ as if that will do the trick.
Once more, Marco Rubio (soon to be joined by Donald Trump) showed his true colors by declaring Americans under 21, who are old enough to vote and to serve in the military and die for their country, too young to buy a rifle. Then again, Rubio is also "reconsidering" magazine capacity limits, supports a bump-stock ban and background check expansion, and opposes arming teachers.
And because all this isn't enough to mollify those who want it all, "Extreme Risk Protection Orders" are being offered up by "conservative pundits," by Donald Trump, by Lindsey Graham, and in a reversal of its earlier position, by NRA. Look for that to soon be "expanded" to include "boyfriends" and, as gun-grabbers are introducing in California, "co-workers."
And then there's Ohio "Republican" Gov. and 2016 presidential GOP candidate John Kasich, whose vote for the Clinton semi-auto ban when he was in the Senate made him the darling of the Brady Campaign. That's until political considerations during his gubernatorial run made it advantageous for him to whore himself enough to win the NRA's endorsement - and that's until the Parkland shootings convinced him it was time to once more betray his oath and those who put him in power by renewing calls for a new "assault weapons" ban.
Disorder in the court
Kasich will get his wish if U.S. District Judge William Young, a Ronald Reagan appointee, has anything to say about it. Early in April, he dismissed a lawsuit against Massachusetts' "expanded" semi-auto ban, adding his personal (historically and judicially baseless) dig against the original intent behind the Second Amendment.
"The AR-15 and its analogs, along with large capacity magazines, are simply not weapons within the original meaning of the individual constitutional rights to 'bear arms," Young wrote in his dismissal. That, of course, not only flies in the face of Founding intent, but also ignores past Supreme Court understanding acknowledged in United States v. Miller:
"[T]he Militia comprised all males physically capable of acting in concert for the common defense ... [who] were expected to appear bearing arms supplied by themselves and of the kind in common use at the time [and] "the Second Amendment guarantees the right to keep and bear ... ordinary military equipment â€¦ that â€¦ could contribute to the common defense."
Those citizens couldn't very well fulfill that duty if they didn't already possess such arms. And Young is hardly alone among a succession of black-robed "Republican" turncoats, from Chief Justice Warren Burger, who in retirement called the individual rights interpretation of the Second Amendment a "fraud," to David Souter, who joined the dissent in Heller, to retired "Justice" John Paul Stevens, whose recent editorial in The New York Times urged the government to "Repeal the Second Amendment."
Full court press
In many ways, through its recognition of an individual right, Heller was the landmark case we're told it was. That said, "originalist" Antonin Scalia left the door open for all kinds of infringements with some assertions the antis are taking full advantage of.
"Like most rights, the Second Amendment right is not unlimited," Scalia asserted. Not surprisingly, he sided with stare decisis über alles over "shall not be infringed" as the basis for upholding "concealed weapons prohibitions" and "legitimizing" gun-free zones. But the most damaging point that has been seized upon and has paved the way for the banning of militia suitable arms is this:
"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."
"Ordinary military equipment" is not what Scalia focused on, but rather on "the sort of lawful weapons that [militia members] possessed at home." He used that to imply banning weapons such as "M-16 rifles and the like" would not be an infringement. Why, otherwise, he noted, "it would mean that the National Firearms Act's restrictions on machineguns ... might be unconstitutional, machineguns being useful in warfare in 1939."
Bingo. No kidding.
What Scalia and the Heller majority ignored is that the militia, at the time the Second Amendment was ratified, kept the same types of weapons at home as they were likely to encounter when called forth â€“ otherwise, they would be marching off to their slaughter. That's hardly an occurrence that would be "necessary to the security of a free State."
By definition, all weapons can be made dangerous through their deployment, and the gun-grabbers are quick to spook the herd with "scary evil black rifles" and "high-capacity magazines" that are "weapons of war" and have the sole purpose of "killing as many people as quickly as possible." But here's the thing: If Miller recognized the people - who still comprise the "unorganized militia" as recognized by U.S. Code - have a right to bear "ordinary military equipment," that presupposes "common use" is not a benchmark for commercial popularity or sporting use. And that would mean that "dangerous and unusual" apply to unconventional restricted items that are not part of "ordinary military equipment" or of any "gun control" edicts that have been enacted or are being proposed.
Not that gun owners are asked to consider these arguments against Heller's departures from the prefatory clause of the Second Amendment, even by those they look to for leadership.
"This is a great moment in American history," NRA Executive Vice President Wayne LaPierre gushed. "Our founding fathers wrote and intended the Second Amendment to be an individual right. The Supreme Court has now acknowledged it."
Not fully, Mr. LaPierre. And they made further acknowledgment much more difficult for a court that places even wrong precedents over what is right. Look how long it took to get "separate but equal" racial segregation overturned.
As an aside, much hope has been placed in President Trump's appointment of Neil Gorsuch to the high court. It has won high praise from the NRA and other national gun groups based on no more of a given justification than he said, "The Second Amendment protects an individual's right to own firearms and may not be infringed lightly." It's important to note that:
"During his confirmation hearings, Justice Gorsuch assured Sen. Dianne Feinstein, D-California, when asked specifically about the banning of M-16 rifles and the like, that he would follow the law in Heller."
So now what?
Interesting question. The way things are going in favor of the antis while "Republicans" are nominally in control does not look good. If Democrats sweep the midterms and then manage to impeach Donald Trump, expect them to go full bore, from "universal background checks" to "assault weapon" bans and more. Don't think for a moment because fault has been found here with Republican disappointments that the other side of the aisle represents anything other than utter disaster for legal recognition of the right to keep and bear arms.
Unable to restrain themselves in the wake of Stoneman Douglas, they've taken the mask off their "commonsense gun safety law" deception and revealed themselves to be the party of flat-out citizen disarmament. If they take over, look for federal courts and SCOTUS to be stacked with John Paul Stevens clones, look for legislatures to pass whatever edicts they like, and look for rubber-stamp activist courts to uphold them.
Unfortunately, viable political "solutions," assuming such things even exist, do not look promising. Some, including prominent "conservatives" like radio host Mark Levin, are pushing for a convention of the states, prompting others to warn against how that could turn into a full-blown coup, in turn prompting counter-arguments that safeguards exist to preclude that.
Is the flaw really with the Constitution or with those who usurp powers and those who allow it? Without going into a full-blown exploration of both sides of that argument, which would require a whole 'nother column, we need to consider how far we've strayed from original intent. Those in power have twisted and perverted the clear meaning of "the right of the people to keep and bear arms shall not be infringed," and to presume they won't twist and pervert again hardly seems a sure bet.
So, do we just keep going with Republicans, no matter the betrayals, and ignore the warning about the frog in the slow-heating pot? Voting for "the lesser of two evils" is what got us into this mess, and the tired, old adage that "The perfect is the enemy of the good" presupposes that choice will even be available in a few years.
As long as peaceable choices exist, we owe it to "ourselves and our Posterity" to hold true to our principles, and to hold representatives soliciting our support to them as well. It's on us to do everything in our power to keep those choices from being taken from us, and that means getting involved, working hard and expending resources to protect our birthrights.
It'll be a lot easier than the alternative, where the choice is surrender or be destroyed.
David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a field editor/columnist at GUNS Magazine, a featured contributor to AmmoLand, contributor to Firearms News website and magazine, and associate editor for Oath Keepers, he blogs at "The War on Guns: Notes from the Resistance" and posts on Twitter: @dcodrea and Facebook.