L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 138, September 10, 2001
Disloyal to the United States?
by Vin Suprynowicz
Special to TLE
New Attorney General (and former U.S. Sen.) John Ashcroft has said he will honor President Bush's desire to extend the federal ban on further manufacture or import of certain semi-automatic rifles with pistol grips, bayonet lugs, and 20-round magazines (weapons which are designed to look like "assault weapons," even though they lack the true assault weapon's capacity for automatic fire -- real assault rifles having been heavily taxed and regulated as a "machine gun" ever since 1934.)
Sen. Ashcroft testified at his Senate confirmation hearing, "I don't believe the Second Amendment to be one that forbids any regulation of guns."
This is a radical defender of the Second Amendment and the Bill of Rights? Paging Wimp Central.
Sen. Ashcroft does not promise the long-overdue shutdown of the firearms division of the BATF. He does not even call for the average American to again be allowed to purchase a newly-imported machine gun through the mails, as any of our law-abiding grandparents could before 1934.
Rather, the attorney general embraces what is now described in the legal journals as the standard position on the Second Amendment (endorsed by the liberal Lawrence Tribe of Harvard, among others), that while some "pragmatic" regulation may be allowable, the Second Amendment means what it plainly says: that individual, private citizens of these United States have a "right to keep and bear arms," which none may "infringe."
Much is made of the "militia clause," which prefaces this ban on infringement by stating "A well regulated Militia, being necessary to the security of a free State... ." Indeed, the Supreme Court took this militia stipulation into account in its decision in the 1939 Miller case, in which the justices asked the prosecutors whether the sawed-off-shotgun in question was a weapon of military usefulness.
With Miller (an indigent and itinerant moonshiner) not represented, the spokesman for the government falsely and without opposition asserted that sawed-off shotguns had been of no use at all in the trenches of the recent World War. With this false testimony unchallenged, the high court remanded the Miller case, advising that ownership of a sawed-off shotgun would not be protected under the Second Amendment if such a weapon was, in fact, of no military usefulness.
Miller is often cited today as a case supporting the government's right to regulate or even ban firearms except in use by the National Guard. But no one contended Miller was involved in discharging his duties as a member of the Missouri National Guard as he stood protecting his illicit whiskey still with his sawed-off shotgun. Rather, under the logic of the 1939 Miller court, it is private possession of precisely those weapon of military utility (such as the true, fully-automatic assault rifle, and the shoulder-launched, heat-seeking missile) which is most directly protected by the Second Amendment.
Why else would the court have asked whether the sawed-off shotgun was a weapon of military utility?
Anyway, do those who advance the "militia argument" really want to help us make sure our local citizen militias are better armed and better drilled (the colonial meaning of "well regulated," as it's still the British meaning), and thus better prepared to resist any further federal usurpation of powers not duly delegated to the central government by the Constitution?
Of course not. They know full well that a disarmed populace is far less likely to resist ever-higher taxes to fund the gun-grabbers' favorite social engineering schemes, not to mention busy federal beavers shutting off the irrigation water to save the "endangered sucker fish" of the Klamath River Valley.
What they want has nothing to do with the Founders' intent that America should depend on a strong and independent-minded citizen militia instead of a standing army under the central control of Washington City. No, this is all just a lawyer's parlor trick to get to a result best summarized as: "I don't want Suprynowicz and his buddies to own any more guns, except maybe one inoffensive, single-shot hunting rifle apiece," and it doesn't matter how much the plain-as-day writings of James Madison and Tenche Cox and Patrick Henry and Noah Webster and Richard Henry Lee have to be twisted to get them to this result.
Meantime, how has the left -- which continually insists it has no desire to actually ban firearms in private hands -- responded to Mr. Ashcroft's pitifully moderate stance?
There now arises from among their midst a cacophony of outraged shrieks and bellows the like of which has not been heard since an equally timid Republican insurgency asserted in 1994 that perhaps, just maybe, an owner whose property had been reduced to worthlessness by environmental regulations might be entitled to some compensation under the Fifth Amendment's "takings" clause.
The prediction of the Reactionary Left at the time -- that this would lead to the paving-over of paradise -- does not seem to have come to fruition. (In fact, the federal government now rules millions more acres off limits to the private citizen than ever before.)
This time from the socialist fringe, the leaders of the victim disarmament movement shriek that if Mr. Ashcroft succeeds in getting the FBI to destroy records of their gun-buyer "instant background checks" as soon as they're completed -- precisely as the gun grabbers assured us they would, back when they were promoting their precious "Brady Bill" -- why, it will "eviscerate the ability of law enforcement officials to prevent fraud and illegal gun sales by unscrupulous dealers to straw purchasers."
Why? Because "instant checks" are worthless? How many illegal sales are permitted by the "instant check" but then tracked down, 89 days later? And how do we know these records are really being destroyed after 90 days, anyway? Has any FBI agent ever been led away in handcuffs and locked up in Leavenworth for retaining such a record for, say, 150 days? Is such an outcome even conceivable?
By writing a letter to the National Rifle Association, rejecting the argument that the Second protects only a " 'collective' right of the states to maintain militias," Mr. Ashcroft has shown "disloyalty to his client, the United States, and an impermissible conflict of interest," charge U.S. Sens. Edward M. Kennedy and Charles E. Schumer, in an article published in the July 21 Boston Globe.
Disloyalty to the United States? By reading out the plain English of the Bill of Rights? Are Sens. Kennedy and Schumer now taking a page from the late Sen. Joe McCarthy?
As to this "collective right" nonsense, let us merely imagine any elected official in these United States asserting with a straight face that the Freedom of the Press is a "collective right" which can be properly exercised only by each state governor naming and funding one "official newspaper" for his state -- operated under his personal command and control -- whereupon it will not infringe the so-called "Freedom of the Press" in the slightest way if private individuals attempting to own and operate their own, competing printing presses are arrested and thrown in jail.
After all, it's not written down that it's an "individual" right? So it must be a "collective" right ... right?
"In a series of stealth measures and after private communication with the gun lobby, Attorney General John Ashcroft is quietly taking steps to erode the very gun laws he has sworn under oath to defend," thunder the rape enablers Kennedy and Schumer, conveniently provided by the U.S. government with all the armed bodyguards they desire, even as they would incrementally disarm the rest of us.
In his May 17 letter to the NRA, the ruffled senators squawk, "Ashcroft also articulated a new standard for evaluating gun laws, proposing to require that any restriction on gun ownership be supported by a compelling state interest -- a test that very few laws can survive."
What an interesting acknowledgement -- that few of the infringements on the Bill of Rights promoted by Sens. Schumer and Kennedy could withstand this simple test, demanding that some "compelling state interest" be shown for further erosion of our rights.
In fact, every existing "gun control" laws is unwise, unconstitutional and counterproductive. Counties which allow law-abiding private citizens to go armed have seen their rates of violent crime drop markedly, as documented by Dr. John Lott of Yale in his fine, peer-reviewed book "More Guns, Less Crime."
Sens. Kennedy and Schumer are on the losing end of this debate over individual liberties. They have nothing left in their arsenal but foot-stomping, hog-bellowing, feigned outrage and manufactured fear. And their overreaction to Mr. Ashcroft's extremely modest pronouncements shows that they know it.