Naming Names (Part One)

 

Go sell your crazy somewhere else...we are all stocked up here.

– Louisiana Sen. John Kennedy

A school shooting, political posturing and... There ought to be a law. Some reflections.

Mass shootings always result in someone, somewhere demanding action. Most of the time (as seen in many places in the US in recent weeks) those demands are directed at the legislative branches of government, that more laws be enacted that will make it illegal to...

This is generally where confusion reigns.

As we have discussed in the past, there are already a multitude of laws extant that prohibit:

Murder

Possession of firearms within school buildings

Purchase or possession of firearms by juveniles

Purchase or possession of firearms by previous offenders

"Assault weapons bans" are once again a hot topic. Fair enough. 

We have explained here that modern combat arms are designed to give the shooter as many advantages as possible when used in situations where the defense of life matters. Some of those advantages are available to the average citizen, some are reserved for members of law enforcement organizations and the military. Absolutists on either wing of the 2nd Amendment can think what they want. These are facts, at least for the moment.

It is also a fact that rhetorical flourishes about the kinds of firearms a person "needs" imposed on the owner by others is a not-especially-deft and constitutionally infirmed attempt to shift the burden of going forward onto the citizen. Nowhere in our constitution is there any suggestion that a citizen must advance a justification for exercising their rights as explained under the 2nd Amendment. Recent Supreme Court jurisprudence has established this, and continues to reaffirm it.

The Supreme Court in Heller and every 2nd Amendment case thereafter recognizes a citizen's right to "keep and bear arms" as an individual right. That is, the preliminary language about well ordered militias and such is meant to explain and not to restrict what comes next. The amendment as ratified made no distinctions between military and hunting rifles. Consequently, the right of individuals to own combat arms is protected.

It's not absolute. The Court in Heller stated (this was dicta, which is an industry term meaning that the justices were thinking out loud) that the 2nd Amendment is subject to reasonable restrictions, to wit:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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.

In other words, it is constitutional to incorporate some restrictions into law. Indeed, the Court addressed the "M-16 rifle and the like" and, somewhat obtusely, considered that some military small arms are "dangerous and unusual weapons." (For those who think you've just hit on verbiage permitting an "assault weapons ban" note the presence of the word and.) Let's stay on solid ground, here, and allow as how the 2nd Amendment isn't absolute. If that spurs you on to ask what part of "[S]hall not be infringed" I don't understand, maybe this essay isn't for you.

The Constitution's due process clauses require a certain level of specificity when it comes to prohibitions. That is, if something is illegal to possess, the law making it so must define, clearly, what it is. Which leads us back to Senator Kennedy.

In a Senate hearing, Senator Kennedy prefaced his questions of the Secretary of Homeland Security by eliciting an admission that the Secretary had called for a ban on "assault rifles." He then asked the operative question.

"Mr. Secretary, what is your definition of an assault rifle?"

The Secretary's answer can best be described as evasive. He would leave it up to the experts to define, he was not one of those experts... Etcetera and so forth.

We'll leave for another day the politics of this exchange, and stick with the law. How would you define an assault rifle? Is it a certain color? Does it have a detachable magazine or is it loaded internally with a clip? Full auto, semi auto? Plastic and metal, or metal and wood? Does it matter the caliber of bullet? If you say "Ergonomically designed to maximize target acquisition" you've described just about every firearm, even something as antique as:

My dad and I were in Bargain City USA outside of Philadelphia, circa 1960. In an old wooden barrel, set in the aisle among other recreational gear (fishing poles, canvas tents, baseball bats) were a dozen or so rifles, packed in cosmoline - a preservative gel. They were war-surplus M-1 carbines, with a purchase price of perhaps $50. It is a semi-automatic thirty caliber gas-operated shoulder weapon issued during WWII to foot soldiers, paratroopers, tankers and others, as a lightweight alternative to the heavier, but more lethal M-1 Garand. It had a detachable magazine, a bayonet lug, and some models had a pistol grip and folding stock. I have a picture of my Marine father carrying an M-1 Carbine on Saipan, during the battle with the Japanese Army in 1944.

The Secretary eventually said he'd adhere to the 1994 ban definition, to wit:

Semi-automatic rifles able to accept detachable magazines and has two or more of the following:

• Folding or telescoping stock
• Pistol grip
• Bayonet mount
• Flash hider or threaded barrel designed to accommodate one
• Grenade launcher

Does that sound familiar? Of course, under the 1994 law 650 weapons were specifically exempted (including the M-1 carbine) which makes it seem less like an "assault weapons ban" and more like something done to say something was done. In addition, there is some question whether it would survive a Heller test.

Remember, that definition may, someday, be applied to deprive a fellow citizen of their liberty or property. In the law, the prosecution must prove each and every material element with proof beyond a reasonable doubt. If you are missing one element, it is no longer an "assault rifle" but is a JAR - Just Another Rifle.

This is not a time to sell crazy. It's a time to look at the laws we already have, the procedures already in place and ask - do we really mean to be serious, or are we just passing laws to "Do something?"