An editorial by Ben Szioli
Copy edited by Jeff Epstein, Editor-in-Chief of Citizens’ Media TV
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This article was originally published on May 4th, 2018, which is the forty-eighth anniversary of the tragedy at Kent State University. On that day, the Army National Guard clashed with non-violent protesters, resulting in the death of four students. The Second Amendment could have prevented this tragedy, but instead the Second Amendment has been twisted in a way that enabled it.
I think we are all pretty fed up.
It’s understandable. We’re faced with a constant onslaught of mass shootings, and absolutely nothing is being done. In our desperation, though, I think many of us are losing our ability to moderate our views.
The rallying cry in the Democratic Party has swung from 1990s- and 2000s-era calls for an “assault weapons ban” to an increasing number of voters demanding a summary ban on semi-automatic or AR-15-style weapons in general. The reasons why a semi-automatic ban is infeasible are too many to list here, but the question of why we can’t just ban the AR-15 is manageable enough to tackle. However, before I begin, I need to address some of the emotionality on the Democratic side of the discussion.
In the face of a Grand Old Party that refuses to abide by any sense of compromise or convention, it is tempting and often necessary to toss aside convention in return. It is tempting to utilize brute force, having just been subjected to the forceful 2016 election.
However, we have to acknowledge that some conventions cannot be flouted. There are some punches we cannot throw. In our effort to stop mass shootings and gun deaths at large, compromising our convictions and debasing our rights is not an option. The current calls to ban AR-15s manage to accomplish exactly that.
Why Do We Have A Second Amendment?
First, however, we need some context. Before we discuss the Second Amendment’s role in the modern world, it’s important to understand why the amendment exists at all. The Federalist Papers, a series of essays by the Founding Fathers, detail their reasoning for many facets of the newborn Constitution. In Federalist No. 8, Alexander Hamilton laid out the basics:
The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
The institutions chiefly alluded to are STANDING ARMIES (sic) and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it. Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain.
There was a potent concern among the Framers that the federal government, with its unlimited ability to control the nation’s standing army, would quash the rights and security of the individual states. As a result, they continued the American colonial practice of convening militias: local brigades, assembled democratically from the populace.
The Framers utilized the existing framework of militias to provide local defense in the new United States—in place of the aforementioned standing army. Militias were to respond to serious crimes, uprisings, and riots, preventing the traditional military from having to come in and fight civilians. Today, this role is split between the National Guard and police.
Why Does The Second Amendment Mention Militias?
It is often said that the order of the amendments has significance in itself. In that view, it’s telling that after passing the First Amendment, validating their own right to declare these freedoms, and the Second Amendment, providing a militia to keep the army at bay, the Constitutional Convention next passed the Third Amendment. That amendment barred the government from stationing troops in towns and homes as a garrison, effectively designating defense of the interior of the country to the militias. It was not due process or states’ rights that came next, but military garrisons.
In other words, the militia stood between the citizenry and the military as a buffer and a line of defense, and the Founding Fathers went out of their way to affirm this concept twice in their first three amendments to the Constitution. In order to prevent harmful interactions between the people and federal soldiers, militias handled local law enforcement.
Do Militias Stand A Chance?
James Madison elaborated on the idea in Federalist No. 46, arguing that the standing army ought to be limited to about 1% of the population, but that around 20% of the population ought to be armed in order to form a militia if needed, dwarfing the army:
The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
Now, that’s not to say that the purpose of the militia is to fight the standing army. The large size of the militia is a deterrent, not a threat. A common (and weak) argument amid the center-left is that because someone armed with an AR-15 would be helpless against the military, there is no reason to preserve this right to a buffer between us and the government.
In reality, the purpose of the Second Amendment is to prevent militarized troops from having to move into your town every time there is a crime, not to stave off the army in a firefight. Instead of troops from some other area of the country intervening, the local militia can form up and deal with the problem in a way that fits the community, preventing the kinds of tragedies that come when military and civilians clash.
What Does “Bear Arms” Mean?
The interpretation of the phrase “bear arms” is possibly the most contentious part of the Second Amendment. In the same Federalist Paper as above, Madison focused particularly on the degree to which he believed the populace should remain broadly armed, not just as part of the standing army:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
In 2008, a controversial Supreme Court decision in DC v. Heller expanded on what exactly the right to bear arms meant. The argument in the decision was essentially that an armed populace is a pre-condition to the establishment of a militia.
This aspect of the decision checks out. If the citizenry is not armed en masse, then until you arm them, there is effectively no militia and thus nothing standing between the populace and the armed forces. Claiming the opposite would be equivalent to claiming that my car is a taxi because I can paint it yellow when need be.
The Court therefore affirmed the personal right to gun ownership, but sensibly limited that right to the weapons that are in “common use” at the present time.
Do Militias Still Matter?
The argument is often made, though, that guns have changed so much since then that the definition has become invalid. However, the Supreme Court constantly re-interprets the right to bear arms within the framework of our current society, not in a vacuum. There are already considerations made about the time that has passed. Those considerations make up a massive portion of the Supreme Court’s key role in interpreting the Constitution in the modern day.
While we can push our legislators to fill in the gaps with federal law, it is not supposed to be necessary, since Constitutional interpretation is the Supreme Court’s wheelhouse.
After all, surveillance techniques and the nature of evidence have changed drastically with the advent of the Internet. Despite this, there are no widespread calls to change the Fourth Amendment (covering searches and seizures) and no public perception that the amendment applies any less now than it did before. If not Amendment Four or any other amendment, why the Second Amendment?
The Second Amendment Is Not An Exception
Calls to update the Second Amendment are only one example of the amendment being treated differently than any other amendment, with no Constitutional justification. In the case of every Constitutional right, the burden falls on the government to justify infringing it.
With guns, however, a growing expectation is that a gun owner must justify their right to own a gun, but the government need not justify taking a gun away. That would make gun ownership the only right limited in that way, but it would also potentially open the door for other amendments to be interpreted with a burden of proof on the citizen.
For example, you could be forced to prove that you truly need to plead the Fifth, or that you have a need to be provided a speedy trial. It is clear that it is untenable to force people to justify asserting their rights. Rights are intended to be inalienable, needing no assertion at all.
Where Are The Well-Ordered Militias?
It is important to note two important changes to our society. First: there are no more militias. Gun clubs, yes; extremists, yes; private security, yes; but no militias. Where did they go? The Revolutionary War’s local militias were rolled into state militias after the establishment of the United States. Over the years, the militias became increasingly standardized until they became known as the National Guard.
In 1933, the process was completed when the state National Guard organizations were brought under the umbrella of the United States National Guard, effectively removing the bulwark that had existed between Americans and their military. Instead of a militia standing between them and the military, citizens now simply faced two armed federal forces that were only called in for disasters.
Our second acknowledgement: protection of the people on a state and local level was then cemented in the hands of police, who at the time were quite comparable to the average citizen in their methods and process. Modern policing techniques and recruiting have led to an increased militarization of police in the past few decades, however, and it is no longer true that the average police officer is more similar to a worker than a soldier. Yet again, we are faced with the militarization and centralization of our protection from the state, leaving us Constitutionally defenseless.
It is exactly because of this process that gun rights activists cling to their organized ability to bear arms. The overwhelming might of the federal government makes it increasingly more necessary that we keep defense in the hands of the local communities—not more futile. Our country increasingly distrusts the police (whose tactics are standardized and nationalized), and after hundreds of years, we now have a situation where the basic premise of a local militia is defeated and there is no solution in sight.
The solution provided by the Constitution is to maintain gun ownership and organize democratically, which is the only way a protection force like the militias would ever form to fill the void left by militarized and federalized police. Without widespread gun ownership, though, there is no way we will do anything but continue to rely on police that continue to represent us less and less.
What Does That All Have To Do With AR-15s?
Call your memory back to DC v. Heller. The Supreme Court has reasoned that ownership of common weapons is necessary to offset the military. The AR-15 is one of the most popular weapons today, with five to ten million of them residing in the United States at the moment, according to one low estimate, making it a very common weapon. While we may greatly, greatly regret the utility of the AR-15 for the purpose of killing, it is also useful for practice and defense, making it the precise type of weapon that the Founding Fathers would have wanted the populace to have on hand.
Still, we should dispel the misconception that the AR-15 is a military weapon. While it is a derivative of a military weapon and it bears a grim appearance, the AR-15 is not suitable for modern military use. The rifle is mostly intended for home defense and target practice, having been developed for mass production.
Who Invented The AR-15?
There used to be an effective military-grade ArmaLite rifle known as AR-15, which used small rounds and selective (automatic and burst) fire to outperform larger rifles. However, the design was passed over by the Army in favor of the larger-caliber M14 machine gun and subsequently sold to Colt. Colt then reworked the model for civilian use, slowing the fire rate significantly by limiting it to semi-automatic fire.
With its small rounds and moderate firing rate, the Colt AR-15 (the one we have today) is significantly slower than the military M16 and significantly weaker than the M14, making it utterly unsuited to compete against either gun, let alone replace them. What remained after Colt’s redesign was further from a machine gun and closer to a small, fast rifle, suited for inexperienced shooters and maneuverable at the shooting range.
It’s important to note: while the AR-15 may be regarded as an easy weapon for mass shooters to use, its ease of use does not justify banning it. Rifle shootings are responsible for so overwhelmingly few deaths in the country that it is questionable what the utility of focusing our efforts on fighting AR-15s would be, when there are other weapons that cause more deaths and are more dangerous, coming closer to constituting a public health concern.
It does not logically follow that if a weapon is easy to use for a certain crime, we should simply ban the weapon without regard for how common the crime or how dangerous the weapon is. There are many hyper-specific crimes for which a certain weapon is preferable; not all of those weapons are banned. Gasoline is crucial for arson, for example, and yet we permit it to be sold freely to anyone with a red canister. Fast cars are more effective at vehicular murder, and yet they can be driven by anyone with a license. A stun gun, legal in many states, can be used for torture.
These crimes are so uncommon and the weapons are so mundane that the effort of restricting them is unlikely to pay off in the form of lives saved—so we choose not to restrict them. Similarly, mass shootings are a tragedy, a disturbing societal trend, and a problem that needs addressing, but banning AR-15s would be unlikely to help and is, in fact, logistically and legally impossible.
Why Can’t We Just Go Get Them?
As I mentioned, there are potentially more than ten million AR-15s out in circulation. Even passing a manufacturing ban on the weapon would not take those ten million AR-15s off the street. It would not reduce the already-sky-high rate of gun ownership in America. It might yield some small but significant benefits long-term, as the weapons naturally filter out, but over the next decade, it would not directly save particularly many lives. An AR-15 ban is therefore a very questionable public health measure.
Many people suggest, of course, that we simply round the guns up. It’s common to hear liberals mock the conservative battle cry, “if you want my guns, come take them.” Some people would be glad to send the police to do just that.
There are two reasons why this idea is ridiculous: it will never happen, and if it did happen, it would violate the Constitution.
To begin, the political will in America is not present for a door-to-door collection of guns. The idea of military or police conducting raids to fetch guns, or tracking ownership of a certain brand name, ought to disturb any American. It would be authoritarian, it would be frightening, it would hand enormous power over to a militarized police state that few of us truly trust; as I said, most of all, it would violate the Constitution itself. I’m not talking about a doormat like the Second Amendment, either. I’m not talking about an Amendment at all.
A ban on AR-15 ownership would violate the text of the Constitution itself.
Ex post facto
Sections 9 and 10 of Article 1 of the Constitution forbid the federal and state governments from applying laws with what is called “retroactive force,” meaning that they apply to actions undertaken in the past. Since the AR-15s currently out in the world were all bought legally, any law banning them now would violate these Sections of the Constitution. This is known as an ex post facto law.
This isn’t just “respecting our norms.” Protection from ex post facto prosecution is vital to all Americans. Literally any action you’ve ever taken could be banned and put on trial in hindsight, otherwise—and not just in theory. This kind of abuse can easily be made a reality.
Social reactionary movements like the backlash to LGBTQ and socialist movements could retroactively punish activists for their past involvement with newly-banned organizations—in real life, not in the textbook. They could really do it. Freedom from ex post facto laws is a fundamental freedom that we cannot afford to give up, no matter how urgent our cause.
This is not all to say that we should continue to do nothing, or that we should handcuff ourselves from exploring our options; this is merely to warn against an ineffective and counterproductive option that has catapulted to the forefront of our public discourse. AR-15s, and sporting rifles in general, are not driving gun crime rates in America. Our remarkable gun violence rate cannot be explained by the presence of semi-automatic rifles, and no rifle ban will solve the problem.
The real solutions we settle on will share broad support and base themselves strongly in evidence and justice instead of being forced through by a vocal minority. Any other plan is self-destruction.
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