Holding the line

After having drifted away from a gun forum on which I was once quite active (1911 forum), I’ve recently started hanging around again. That’s a good thing, because otherwise I would have missed some words of wisdom that I think need more exposure. The author occasionally leaves comments on this blog, and has given me permission to reprint his advice to gun owners concerned about the hostile political climate we are now entering.

Attitude and Action

I have seen a seemingly defeatist attitude on a number of pro-2A sites in light of the recent elections. We are giving the gungrabbers the wrong impression. Here are some thoughts I have on the issue—feel free to post these ideas on other sites (e.g., AR-15.com, APS, THR, TFL, etc.).

1. Appropriate Attitude

We should not embolden the enemy by seemingly accepting the inevitability of more 2A infringements, like a new AWB or ammo taxes. Our enemies need to know that our resolve is strong and that infringements will be met at every chokepoint (legislative and judicial). Drawing the line at attempted house-to-house confiscation is simply not acceptable—the “tooth and nail” fight begins now.

2. Individuals Have Standing

Heller makes it clear that individuals, not organizations, have a right to keep and bear arms. This gives individuals standing to challenge infringement of that right—we do not need to wait for criminal charges to ensure that this right is not infringed. It would appear that courts are now forced to recognize that individuals can seek various forms of relief, including injunctive relief preventing the enforcement of laws, if there is a substantial likelihood of success on the claim that their individual right to keep/bear arms is being infringed. These cases can no longer be thrown out under the “collective theory” of rights (e.g., only the militia has rights under the 2A). I realize that incorporation still needs to occur, but the dicta in Heller all but insures incorporation.

3. “Arms” Include Semi-Auto Weapons

The only categorical restriction that Heller allows with respect to firearm type is that “dangerous and unusual” weapons may be regulated; even then, there is language in the Heller case that seems to suggest that these types of weapons are only subject to limitation in the “bearing” (e.g, carrying) context. Some relevant text in Heller states:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Heller at pp. 55-56.

Strong arguments exist that semi-auto battle rifles (not full autos) are the “sorts of lawful weapons that [we] possess[] at home” and are therefore exactly the type of weapons protected by the 2A. The argument that full autos (“M-16 rifles and the like”) were made less-than-commonplace by infringing laws (a circularity not addressed in Heller) is probably an argument for another day—MGs seem to scare people too much. Indeed, the semi-auto platform (rifle and pistol) is likely the most popular firearms type available today (just look at all the recent purchases ).

4. The Government Now Needs Much More Than Just a “Rational Basis”

While the Supreme Court did not come out and say it in Heller, strict scrutiny applies to the analysis of pretty much every individual freedom enumerated in the Bill of Rights. If the government wants to propose limitations on the 2A, “because we say so” is no longer enough—the government must show that a compelling interest is served by the proposed regulation. The 1994 AWB already shows that AWBs do nothing to protect the public or in any way impact crime rates. Same concept applies to standard capacity magazines—limitations have no beneficial effect. Indeed choir, only the law-abiding abide by the law. They will try to use statistics to “prove” their point, but a tie goes to the runner here (increased scrutiny requires the court to “err” on the side of non-infringement).

5. Indirect Attacks

I have seen many people lamenting high ammo taxes and the like. There is an old adage in the law—“you cannot do indirectly that which you are prohibited from doing directly.” How long would people stand for prohibitive federal taxes on internet access, or printer cartridges, or paper before 1A challenges were waged? Without ammunition, a gun is just an unwieldy club (or a paperweight). Ammunition is an essential component of a functioning firearm—it cannot be separated from the firearm itself—to enact restrictions on ammo (either directly or via taxation) is no different than directly imposing restrictions on the arms themselves. People with at least 2 functioning synapses will understand this—educate them.

6. We Need Friends

Get out and educate people when you have the opportunity. Let them know that the 2A has nothing to do with hunting or sporting purposes—it is, at its core, a tyranny deterrent. I would love to see more people in the law enforcement community be vocal on these points. If you have taken an oath to defend the Constitution, step up and let people know that you will not tolerate (or enforce) direct or indirect infringements of the 2A.

To that, I’d like to add one more point of my own. We often hear (and I have been guilty of saying) things like “Our gun rights are in danger.” That’s playing right into the other side’s hands. Our unalienable rights can’t be taken away–else they would be “alienable.” Recognition of our rights is in danger–if we are less than steadfast in demanding it–but the rights themselves are forever.

If we don’t force the government–by whatever means necessary–to honor them, those rights are wasted on us.

III

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