“If a ban on semi-automatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit,” Judge Frank Easterbrook wrote in the majority opinion for a 3-judge 7th US Circuit Court of Appeals panel. The Reagan-appointee’s decision was a temporary setback for the Illinois State Rifle and Pistol Association-backed challenge to the city of Highland Park’s “assault weapon” ban, albeit one that is sure to be appealed.
Much of Easterbrook’s rationale for pretending the words “shall not be infringed” were intended by the Founders to mean “unless it upsets the Tories” was based on “common use” language employed in the Heller and earlier Miller decision.
“Like most rights, the Second Amendment right is not unlimited,” the Supreme Court ruled. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose … Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
Paraphrasing a line by the Inigo Montoya character from The Princess Bride comes to mind. That term, I do not think it means what the anti-gunners, or even most judges, think it means.
In Miller, the court had no evidence possession of a short-barrel shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”
That’s the key point being ducked. The function of the militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was—and is—to field citizen soldiers. And these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles. The militia assembled with the intent to match and best a professional military threat.
The same still holds true, even if the government is intent on neglecting its Constitutional “community organizing” duties. If a weapon is in common use by soldiers, it is part of that “terrible implement” clause Tench Coxe claimed as “the birthright of an American.” To repeat a saying until even judges understand it (and only frauds pretend they don’t), the Second Amendment is not about duck hunting.
You know that and I know that, but what are we supposed to do when legislators and judges, either through ignorance or deliberate oath-breaking, conduct themselves like they do not?
Be informed and involved. Work to educate our countrymen. Join and help fund pro-gun groups. Support lawsuits. If you don’t like the law, work to change it. Vote in better politicians.
It would probably be a pretty safe bet to guess most GUNS readers, particularly those of you who regularly read the “Rights Watch” column, have been doing most, if not all of those things, for years. So what do we do when that’s the case, but we live in a district or state where anti-gun “representatives” are safe from political repercussions, and the judges have an agenda that does not include freely exercising your right to keep and bear arms?
Some gun owners have embraced an “I will not comply” philosophy, and done it in a way that dares authorities to enforce what they’ve imposed. Untold numbers in California, Connecticut and New York have refused to register their “assault weapons.” Gun owners in Colorado are actively defying the standard-capacity magazine ban. Gun owners in Washington State are openly flouting the recently-passed initiative requiring “background checks” (that is, registration) for private transfers.
The authorities, used to being obeyed, don’t know what to do now that their bluff has been called. They understand they don’t have the resources to go after any but a statistically insignificant percentage of “scofflaws,” no matter how loudly indignant urban newspaper editorials demand they do just that.
“[T]he bottom line is the state must try to enforce the law,” The Hartford Courant railed, noting “scores of thousands of Connecticut residents failed to register their military-style assault weapons with state police.
“If you want to disobey the law, you should be prepared to face the consequences,” the editors, who had no personal skin in the enforcement game, proclaimed.
Before assessing likely consequences, which won’t happen without pushback, it would be helpful to understand the scope of the problem. But gun-grabbing regimes play coy with information that might make them appear impotent, as an ongoing action against New York State reveals. Pressed by gun rights advocacy groups for numbers of “assault weapons” registered in compliance with the so-called SAFE Act, the State Police have refused to honor Freedom of Information Law requests, necessitating a 2014 lawsuit that has not been decided at this writing.
Widespread defiance, when all else fails, is something I’ve taken to calling a “new paradigm,” and while that holds true for many gun rights activists who have been forced to make the terrible decision between surrender to an edict or personal risk for disobeying it, it is. But it’s not really new. It has a long and proud tradition.
Back in the 18th Century, before the colonies won independence, a jury in the trial of publisher John Peter Zenger heeded his defense attorney, Alexander Hamilton, and refused to convict him of libel by defying the law which at the time said truth was no defense. The 19th Century saw philosopher Henry David Thoreau’s Civil Disobedience essay, and later, law-breaking abolitionists helping escaped slaves via the Underground Railway. In the 20th Century, civil rights actions, memorably exemplified by Rosa Parks refusing to sit in the back of the bus, showed the power of unified people standing up and declaring their rights were to be served by the state, not suppressed by it.
Indeed, it was an act of ultimate civil disobedience, manifesting itself as active resistance, in which Captain John Parker and his Lexington militia defied British Major John Pitcairn’s order to “Throw down your arms, ye villains, ye Rebels, Disperse!” The insurrectionists were subjects of the Crown, their lawful government. There’s no getting around it: They were lawbreakers and criminals. So were the seditious men who the following year pledged their Lives, their Fortunes and their sacred Honor, and signed the treasonous Declaration of Independence.
It goes without saying that many at the time did not support a war of rebellion. Many were no doubt horrified by the “radical, anti-government extremists” committing quasi-terrorist acts as Sons of Liberty or just as random resisters, and no doubt some on the side of Liberty thought many of their actions “made them all look bad.”
Still, when an edict passes that there’s no getting around, one we won’t be able to vote our way out of or sue our way around, when we see that the right delayed is, in fact, a right denied, you and I are going to have a decision to make. No one can make it for us.
What will you do if ordered to register your firearms? What will you do if ordered to surrender them because they have been declared “illegal”? Will you obey political and judicial criminals betraying their oaths to the “supreme Law of the Land,” or will you resolve “I will not comply”?
By David Codrea