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Spitting on the Constitution

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On December 6, the Ninth Circuit Court of Appeals upheld California’s ban on “assault rifles” on the ground that only state organizations, and not private citizens, have the right to keep and bear arms.  The Court ruled that the Second Amendment did not apply to “an ‘unregulated’ mob of armed individuals.”

The Second Amendment to the U.S. Constitution was written precisely to protect what the court refers to as an “unregulated mob.” In the early days of the American Revolution, private individuals defied their lawful government by forming armed, private militias to oppose the king’s troops.

In Virginia, George Mason and George Washington, two of our most famous Founding Fathers, formed the Fairfax County Militia Association in 1774, at a time when the Colonies verged on open rebellion.  Today, such an organization would be illegal under the Ninth Circuit’s interpretation of the Constitution.  It might be worth mentioning that without such “unregulated mobs,” the members of the federal judiciary would today be wearing wigs.

In response to the ruling, California Attorney General Bill Lockyer said the state had no intention of keeping people from hunting and protecting themselves.  “While I respect the rights of Californians to pursue hunting and sport-shooting, and of law-abiding citizens to protect their homes and businesses, there is no need for these military-style weapons to be on the streets of our state,” he said.

The problem with this argument is twofold.  From a practical perspective, so-called “assault weapons” defy any sound definition. They are more accurately referred to as “scary-looking weapons” because apart from that, they don’t seem to share many common characteristics.  Yes, they all fire semi-automatically (one shot per trigger squeeze), but then again, this definition could be applied to the Smith & Wesson 9mm handgun just as well as to the XM-4 Bushmaster rifle, which is modeled after the M-16 used by the U.S. military.  Yet the handgun is arbitrarily exempted from the ban because it doesn’t “look” like an “assault weapon.”

Another flaw in the debate is the claim that “assault weapons” are used to commit a disproportionate amount of crimes, rendering them nothing more than a menace to civil society without any redeeming social value. But according to award-winning criminologist (and self-described liberal Democrat) Dr. Gary Kleck, in his book Targeting Guns: Firearms and Their Control, “Assault weapons are rarely used by criminals in general or by drug dealers or youth gang members in particular, [and] are almost never used to kill police officers”.

Philosophically speaking, it can be said with complete confidence that the Framers of our form of government were very interested in maintaining a citizenry armed with military-style weapons.  Tench Coxe, a friend of James Madison, referred to “every terrible implement of the soldier” as the “birthright of an American.”  In all of his fumbling to justify the California ban, Lockyer conveniently omitted any mention of the “military-style” weapons that were commonly in private hands when the Second Amendment was adopted 211 years ago this month.

The Second Amendment was never about hunting or self-defense; these were merely the added benefits an armed society would enjoy.  The Founding Fathers saw an armed people as the surest way of preventing the usurpation of individual rights and the enslavement of free men — by an appeal to arms if necessary.  May the fallen men of that “unregulated mob” of colonial militiamen who died on Lexington Green in the early morning hours of April 19, 1775, rest well in their graves, for the members of the Ninth Circuit Court of Appeals, with their holding, have spit on the Constitution that their countrymen ultimately brought into existence.

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    Scott McPherson is policy adviser at The Future of Freedom Foundation. An advocate of the Free State Project, he lives in Portsmouth, New Hampshire.