ASSAULT WEAPONS BAN Memorandum

 

[This is being provided both as an independent commentary and as an introduction to a later post to be published.  This was drafted originally as an enclosure to a letter disseminated during February, 2013, by the writer to Michigan’s two U.S. Senators.]

This is provided as a brief commentary in connection with the consideration of the “Assault Weapons Ban of 2013” Bill, introduced in the United States Senate, and any similar bills that might be or have been introduced in either house.

Certain enhancements of the current regime may be appropriate, but I would tender that a ban of either so-called “assault weapons” or so-called “high capacity magazines” — being terms of art and having no meaning independent of arbitrary statutory definition — would be patently unconstitutional.  In addressing the question one should first give attention of course to Amendment II of the Constitution of the United States of America, viz,

Amendment II

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. [Emphasis supplied]

By the use of the terms Militia and Arms, it is clear that certain weapons arguably of a military character are not prohibited to the people but rather protected from infringement.  Thus, the use of the term “weapons of war” as characterizing implements that can be restricted is plainly a canard.

Now, by the terms of the amendment, the right is not unrestricted, for there are also present, one, the terms keep and bear.  The latter term protects only those arms that could be borne by an individual and whose primary capacity and use is to incapacitate or disable a single individual with each discharge, and the former term further identifies arms as those that both can be and historically are of a type that would have been kept by the people in their individual capacities, viz, arms that by the nature of the function they were designed to perform would not have been stored, in preparation for use, in a community armory.

However, more signal as a criterion is, two, the adjective well regulated.  The right to bear military (or quasi-military) arms is within the context of their disciplined use.  The concept of discipline reminds me of the analogous context of the CPL structure in Michigan.  Any person can, unless within certain defined categories, purchase and maintain a handgun.  However, they are not permitted to carry it concealed without certain training by an authorized person or persons.  By this they are both enhanced in the practical use of the weapon and also subjected to the observance of the instructor, as well as the other participants, in the process.

Thus, might not a tiered system of training, relative to the type of weapon to be used or the context of its use, thereby resulting in a better regulated citizenry, pass constitutional muster?  It would seem it might if the various additional levels of training required were not so arbitrary and capricious as apparently designed simply to be obstacles to the right to bear. In addition to imposition of a greater sense of responsibility upon the person, the additional training required should provide significant opportunities for observation by the other trainees as well as the instructor of any possible psychological or personality aberrations exhibited by any of the participants; if unacceptable or abnormal attributes were observed, then the observer could report this behavior, a determination that the offending person failed in his training might perhaps be issued, and the right to bear such a weapon possibly obstructed.  This it would seem would offer the most efficacious and practicable solution to problems ineffectually attempted to be addressed by misguided “gun control” restrictions.

Would institution of such a regime be consistent with the powers of Congress?  In addressing this question it would now seem appropriate to give attention to the following provision of the Constitution of the United States of America:

Section 8 – Powers of Congress

The Congress shall have Power

[Clause 16]

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; [Emphasis supplied]

The Congress then has the explicit power to prescribe the training discipline to which the citizen-soldier is subject.  This would include it would seem the reasonable level of knowledge, skill and mental acclimation to use an “assault weapon” equipped with a “high capacity magazine”, or other implements of war that can be kept and borne, as a condition to the purchase and keeping of it.  And depending upon the implement there could be gradually expanding levels of training for each, as appropriate.

To my mind, such a regime would provide the necessary amelioration to certain problems conceived to exist in the abuse of these types of weapons, while avoiding the constitutional defects incident to an effort to ban them.

While other proposals in the aforesaid Bill might be consistent with the Constitution, and also be amenable to a sufficiently broad range of the populace, and thus appropriate, I have focused here simply on the provisions endeavoring to ban “assault weapons” and “high capacity magazines”.  For the above reasons I consider these provisions constitutionally defective, in addition to being misguided as the objectives thereof ought to be attained by alternative and more acceptable mechanics.

WAYNE A. SMITH

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