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GUEST COMMENTARY: The misconception about assault weapons and the Second Amendment

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I have been invited to write an op-ed piece about assault weapons in response to my e-mailed comments about the admittedly non-scientific poll of SDGLN readers that reported that 75% of SDGLN readers thought that “assault weapons” should be outlawed.

I assume that the editors felt that the timing of this poll was appropriate in light of the recent tragic events in Arizona. But that of itself is very curious, since the psychotic gunman did not use an “assault weapon,” but rather a handgun.

Some critics will argue: “But the high capacity magazine was outlawed in the past expired assault weapon ban and that would have denied him of it.” That is flat WRONG. This is erroneous information that has been put forth in many media outlets, but nevertheless wrong. The magazine was not ever outlawed, the new manufacture or importation of newly manufactured foreign magazines was restricted to law enforcement and military use, but all existing magazines could be readily owned, possessed, used and transferred in most states of the union, including Arizona, where this occurred.

I am using “assault weapon” in quotes because it is a very inexact term that is often used. The definition of “assault weapon” is different in different jurisdictions, and just because it is “black and scary looking” does not necessarily change its function or utility or make it more or less dangerous. In fact, California and the federal government had very different definitions of “assault weapon” when the federal law was in effect. This was cause for considerable confusion and misunderstanding. If you are going to send someone to prison for something, you need to be absolutely sure to be able to define what that something is. The pistol used in Arizona was not an “assault weapon” by any definition.

In California, the transfer and importation into the state of high capacity magazines that hold more than 10 cartridges is restricted to law enforcement, certain military personnel and specially licensed dealers, but possession and use is allowed if it was owed prior to the law taking effect. Assault weapons as defined by the state have been required to be registered since 1990 and their legal transfer is restricted to law enforcement officers, certain military personnel and specially licensed dealers.

The first thing that comes to mind to refute the idea that a certain class of firearm should be restricted is the Second Amendment argument. Of course it is the also the one that is most hotly contested. The Second Amendment of the Bill of Rights states: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”

One of the most frequent arguments is that the “militia” mentioned is the army or state guard or state militia. Not only does research of historical texts such as The Federalist Papers (1) and written accounts of debates of the time (2) confirm that the mindset of our country’s founders indeed feel that the militia IS the people, but recent United States Supreme Court rulings (3) support the fact that the second amendment applies to the individual right to own firearms.

Anti-gun pundits will argue that the recent decisions that I am referring to only applies to handguns in the District of Columbia but this was affirmed as applying to the states also in a second decision (4). Then the argument is that this decision only applies to handguns comes up. Those same people will argue that “Nowhere does the term ‘assault weapon’ appear in the Second Amendment” but then by that logic, nowhere does the Second Amendment state that it applies to handguns, but clearly, the U.S. Supreme Court has decided it does apply to handguns. If you use the logic that the framers of the Constitution had no idea what an assault weapon is, you are absolutely correct as the term has only recently come to use in the mid-1980s even though the item they are attempting to describe has been in existence for almost 70 years in its basic present form.

At the time the Constitution was written, our founding fathers clearly intended that the citizens be armed with the same armaments that any military would be armed with as that is the purpose of the amendment, to deter tyrants from taking over the United States, either from outside our country or from within it.

The argument that: “Since assault weapons did not exist at the time the Constitution was written, so therefore they are not constitutionally protected” is akin to saying: “Since the Internet did not exist when the Constitution was written, then the First Amendment does not apply to it.” So therefore, in times of national unrest, if whoever is in power in our government shuts off Internet access to the country to prevent communication and the right to assemble it is not in direct violation of our First Amendment right to do so. Sound improbable that this would happen in this day and age? Tell the citizens of Egypt that.

To put things into period context, the black powder musket was the “assault weapon” of 1776, and both the British soldiers and revolutionary soldiers-citizens were armed with them.

Another frequent quip about the validity of the Second Amendment argument is: “You don’t need a semiautomatic rifle to deer or duck hunt, so why should they be legal for civilians?” Those are grand traditions, but are not per se guaranteed by the Second Amendment, the Second Amendment says nothing about duck or deer hunting, and it was never meant to either. A side argument is this statement also implies that civilians are mere mortals and that law enforcement and military have more rights, including the right of superior firearms, another idea that is very clearly disputed in The Federalist Papers and other period writings and discussions.

Don’t get me wrong, I fully and completely support our law enforcement community. They have a tough job to do and I have many friends in law enforcement and I truly respect them for being the tip of the spear, so to speak, and without them our society as we know it would not exist, but they are citizens like you and I with the same rights.

One more thing to ponder, both Hitler and Stalin persecuted Jews, homosexuals and other people they decided were undesirable, and they were able to do so because the persecuted were unarmed and could not defend themselves.

References

(1) The Federalist Papers, #28; #46 (paragraph 9)

(2) ”I ask, sir, what is the militia? It is the whole people, except for a few public officials.” George Mason in debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol 3, June 16 1788

(3) District of Columbia et al. v. Heller; McDonald v. Chicago

(4) McDonald v. Chicago

Jabie Gray is general manager of Discount Gun Mart & Indoor Range, which has stores in San Diego and Santee. To visit the company’s website, click HERE.

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