July 01, 2008

Where Do We Go From Heller

By a disturbingly narrow 5-4 decision, the learned minds on the Supreme Court determined last week that the Second Amendment means what it says:

"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."

The Founders were quite clear on what this Amendment meant, with Thomas Jefferson unequivocally stating, "No Free man shall ever be debarred the use of arms." James Madison stated likewise:

"The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country..."

The Founders were clear: the body of the citizenry—even those not formally enrolled—helps comprise the militia, and so it is codified into federal law.

As the citizenry is the militia, and in light of the Heller decision, two details of existing U.S. federal gun laws should be re-examined.

The Hughes Amendment

The Hughes Amendment was interjected into the Firearm Owners Protection Act (FOPA) of 1986 by Rep. William J. Hughes (D-N.J.), late in the debate and literally in the dead of night. The provision banned the civilian ownership or transfer of any fully-automatic weapon which was not manufactured before May 19, 1986. Though witnesses claim the amendment failed in a voice vote (even though many opponents were absent an empty House), gun control proponent Rep. Charles Rangel (D-N.Y.) was presiding over the House at the time, and declared the amendment approved. FOPA as a whole subsequently passed House and Senate votes and was signed into law.

Though it will come as a surprise to some, fully-automatic weapons are not illegal for U.S. citizens to own, be they submachine guns, selective-fire assault rifles, or crew-served, belt-fed machine guns. According to the BATF, there are at least 240,000 machine guns in civilian hands (PDF) in the United States as of 1995, with roughly half of those belonging to government agencies, and the other half belonging to individuals.

The Hughes Amendment cannot claim to have had any impact on gun deaths; there have been only two known deaths attributed to legally-owned machine guns singe 1934. One of those was at the hands of Dayton, OH Police Officer Roger Waller, who used a department-issue MAC-11 submachine gun to murder a police informant, 52-year-old Lawrence Hileman in 1988. FOPA, by the way, does not apply to police agencies, meaning it was utterly irrelevant in this case.

A second MAC-11 was used (PDF) by Dr. Shou Chao Ho in the murder of Dr. Carmelito Olaes in 1992 may be the only murder committed with a legally-owned, BATF-registered machine gun since the National Firearms Act (NFA) of 1934 began requiring registration 74 years ago.

So if it hasn't hand any impact on saving lives, what has the Hughes Amendment accomplished?

It has raised the price of those firearms among the most suitable for militia use in these modern times to exorbitant levels. A basic, no-frills M-16A2 selective fire as issued to all U.S. military forces (and therefore, perhaps the most directly applicable firearm for militia use) has a replacement cost for the military of just $586. Factor in the $200 NFA transfer tax and a gun dealer's profit, and such weapon should still cost an American citizen who has passed the requisite (and extensive) background checks no more than $1500-$2000.

Because of the middle-of-the-night Hughes Amendment banning individual civilian ownership fully automatic weapons manufactured after May 19, 1986, prices for existing machine guns are exceedingly expensive, as transferable machine guns have become collectors items. The greatest impact of the Hughes Amendment is to make gun collectors, speculators and certain dealers wealthy, at the expense of the intent of this nation's Founders when they imagined the purpose of the militia.

Overturning the Hughes Amendment need not be any more telegraphed nor debated than the original Amendment itself. Simply amending language to overturn the constitutionally-dubious ban to an appropriate bill before the House should return use to a more appropriate NFA-ruled state of affairs that has served this country so well these many years, though that federal law as well could use some updating as well.

Updating the National Firearms Act of 1934

Without question, the National Firearms Act (NFA) of 1934 is what most Americans would consider "reasonable" gun control.

It was passed at a time in American history when criminals engaged in high-profile shootouts with the police during the "Public Enemy"" era of 1931-35, and in the year where Charles "Pretty Boy" Floyd, Bonnie and Clyde, and John Dillinger were all killed in shootouts with authorities.

The NFA was a $200 dollar transfer tax on automatic weapons, short-barreled rifles and shotguns, silencers, "destructive devices" in two categories, and "any other weapon," a category to regulate other weapons not necessarily covered in other classifications, but deemed worthy of taxation and regulation. It was designed to be used a another law enforcement tool against criminals unlikely to pay a transfer tax the equivalent of roughly five months salary at the time.

As a law enforcement tool NFA has been and continued to be an effective tool but is perhaps unduly cumbersome for those civilians who desire to own firearms or firearm components regulated by the law.

As noted in Wikipedia:

Individual owners do not need any license under the NFA to buy Title II weapons. However, the purchase and sale of NFA weapons is heavily taxed and regulated, as follows.

All NFA items must be registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Private owners wishing to purchase an NFA item must obtain permission from the ATF, obtain a signature from the county sheriff or city or town chief of police (not necessarily permission), pass an extensive background check to include submitting a photograph and finger prints, fully register the firearm, receive ATF written permission before moving the firearm across state lines, and pay a tax. The request to transfer ownership of an NFA item is made on an ATF Form 4.

Most Americans have little problem with such restrictions being placed upon NFA-defined "destructive devices" that includes explosives, non-blackpowder rifles greater than .50-caliber, or machine guns, but it is perhaps time to reconsider whether or not the short barrel rifle and silencer provisions of NFA are due to be removed.

Short-Barreled rifles (SBRs)
Short-Barreled Rifles (SBRs) are those firearms with a stock that have either a barrel of less than 16-inches, or a total length of less than 26 inches. For firearms with folding or detachable stocks, measurements are taken with the stock fully extended.

SBRs are imminently practical firearms. Most (not all) SBRs currently in production are short-barreled versions of common assault rifles, and are chambered for either intermediate-power assault weapons, or comparatively low-powered pistol cartridges.

A specific subclass of SBRs, called PDWs (personal defense weapons) has emerged in recent years, designed to bridge the gap between full-size rifles and handguns for military personnel who do not carry a weapon as their primary job function, but who may still be called upon to defend themselves. Different from previous carbines or long-barreled pistols pressed into the role, PDWs are typically chambered with special ammunition that give them greater range and accuracy than pistol caliber bullets common to submachine guns and many carbines, and in military and police guises, often use armor piercing ammunition and are selective-fire.

SBRs are popular among military units and police units because they provide rifle-grade accuracy in a stocked firearm nimble enough for close-quarters use inside buildings. SBR's chambered in .223 Remington/5.56 NATO are particularly useful and safer alternatives to shotguns, pistols, and larger caliber rifles because the .5.56 bullet, having much less mass than even the lightest typical centerfire pistol bullets, provides adequate stopping power, enhanced accuracy, and far less risk of over-penetration compared to other weapons.

As a public health issue, it would be worthwhile for Congress to weigh the pros and cons of amending the NFA to make at least some SBRs more accessible to the general public.

Doing so may:

  • reduce the need to discharge a weapon at all in legally-justified defensive shooting situations, due to a significant intimidation factor/deterrent effect;
  • reduce the number of shots fired, as SBRs have more practical accuracy than pistols
  • specifically in the case of the 5.56-chambered SBRs, reduce the risk of collateral damage due to over-penetration;
  • be a more palatable option for communities that still desire to minimize the number of handguns available to the criminal population, while still providing law-abiding citizens an extremely effective home defense tool.

It is also worth noting that the existing SBR provisions of the 1934-passed NFA have largely been antiquated by technology, with legal pistol variants of both AK-47 and AR-patterned rifles available for sale with only the restrictions placed upon normal handgun sales.

It would make sense to provide the public with this viable alternative firearm for all the reasons noted above, plus the obvious applicability for SBRs as a firearm well-suited for militia use.

The Heller decisions, including both the majority and minority opinions, has opened a conversation on the role of firearms in American law and society. The usefulness of the Hughes Amendment and the updating of the National Firearms Act are but two small steps we should take to help create and maintain the kind of free society that Jefferson, Madison, and the other Founders intended.

Posted by Confederate Yankee at July 1, 2008 02:20 PM

200 million firearms in the hands of 60 million American citizens; we are a voting bloc like no other. Join the NRA and/or other pro-gun organizations and show your muscle.

Posted by: Saint Patton at July 1, 2008 01:46 PM

The NFA is subject to exactly the Same argument as all gun Control laws...criminals don't follow laws they don't want to. Its the definition. the CDC has not been able to find ANY gc law that has had an affect on crime. calling it or any thing "Sensible" gc is to Compromise by giving and not getting.

Posted by: RC at July 1, 2008 02:57 PM

I'm not going to lose any sleep over the price of a machine gun or having to jump through a few hoops in order to own certain weapons.

Posted by: stevesturm at July 1, 2008 06:38 PM

As a Marine who has deployed many times, both in the "regular" infantry, and as a SOF Operator, I have never found an instance where I felt the need to fire on full or burst (minus when I served as an 0331, but full in that MOS is a given). Yet as the constitution is written, and as case law describes it, banning select fire or crew serve weapons does not meet the criteria in the 2A to be prohibited. As has been said in case law from the FF era, "Dangerous and Unusual" weapons are subject to restriction. As seen in case law "Dangerous and Unusual" are defined as a weapon that a soldier is not likely to be trained with.

Now know that rifles (Rifles PERIOD) only account for 2% of weapons used in crime. Now know that rifles classified as "assault weapons" are used in less than a percent of that 2%. Now going along with what CY has stated, only two people have been murdered by select fire or full auto weapons since the thirties.

Come on people. We do not have a gun problem in the US, we have a violence problem. The government will never be able to solve this problem. It is on us to solve it. Solve it through education.

Posted by: Matt at July 1, 2008 09:26 PM

I've quoted you and linked to you here:

Posted by: Consul-At-Arms at July 2, 2008 12:14 AM

Self defence makes sense, and so does property defence. If criminals KNOW it very well could "be their ass", crime rates go down. That's a proven fact and stats are there. Stats on whether people really have the guts to defend their lives and property are a bit more difficult to find. I have asked the question of people before. "Do you have loaded firearms in your home?" At the negative(usually accompanied with a horrified expression), I ask "A victim wannabe, huh?"

Posted by: Tonto (USA) at July 2, 2008 08:01 AM

Unless I'm missing something (I'd have to reread the text to be sure), the Heller decision does not say that the citizenry is the militia, though it does state that in the 1700's the militia was considered to be all able-bodied men of age to serve. It actually decouples the right to bear arms from service in a militia, clarifying that it is an individual right. Thus, it does not necessarily follow that the Supreme Court would ever see fit to dismantle any more gun regulations; at least such regulations were intentionally left untouched by the decision.

Interestingly, the Heller decision would seem to totally undercut the most popular argument against gun registration, which is that it could be used later to confiscate guns. With a Constitutional guarantee of your right to have your guns, this argument doesn't hold water anymore, and the Heller decision clearly leaves intact the power of the state to register and regulate guns in ways that don't prohibit them outright. You could still argue that registration is expensive and ineffective, but the debate has become a matter of practicality, not rights, and the moral element is gone.

Posted by: Nate at July 2, 2008 12:45 PM

"I'm not going to lose any sleep over the price of a machine gun or having to jump through a few hoops in order to own certain weapons."

That's mighty big of you. Do you want us to lose any sleep over freedom of speech, freedom of religion, the right to a jury trial or whatever your pet issue is? In the long run, liberty is not divisible.

Posted by: Saladman at July 3, 2008 04:18 PM

Nate: Heller does not say that the citizenry is the militia, current U.S. law says that the citizenry is the militia.

Heller does indeed recognize the individual nature of the right, decoupled from militia service. Heller left other gun regs untouched because they were not at issue in the suit, which was a deliberate strategic decision on the part of Levy and Gura.

On the face of it, Heller as it stands allows most current regulations. When you dig into it, though, it appears that Scalia set us up for future 14th amendment incorporation, and for 2nd amendment rights to be given the same degree of protection as the other individual rights in the first ten amendments. This is big if our side plays its cards right. has some good posts on this if you scroll down to Another Guest Post and Heller High Water.

Posted by: Saladman at July 3, 2008 04:35 PM

The whole SBR thingie has to be one of the most inane distinctions in the history of gun banning.

Never mind the semi-autos, some of the handiest carbines you can image were the short barreled lever guns made before the NFA went into effect. Oh sure, many of the originals are specifically exempted, but they are usually rather spendy and often chambered in archaic calibers. It's a shame we can't get newer models.

Posted by: ThomasD at July 5, 2008 03:00 PM