September 13, 2004

One Down, Nineteen Thousand Nine Hundred & Ninety Nine To Go

Actually that's a bit of an exaggeration, but you get the point. Including Federal, State & local gun laws yesterday there were approximately 20,000. Today there are 19,999. Now not all of the remaining 19,999 are bad, as they would include laws against shooting negligently in heavily populated areas (such as within city limits) as well as using a firearm in a deliberately threatening manner. The laws that we have to start working on are those based on the principle of prior restraint. Prior restraint is simply the legal term for laws that prevent something based on the possibility of it causing harm.

For example speeding laws are based on the concept of prior restraint; doing 45 MPH through a residential neighborhood does no damage in & of itself, however it makes it harder to avoid an accident, say if a pedestrian wanders into your path.

Where firearms are concerned though, prior restraint usually goes too far. They punish the mere possession of Arms, not just use which may lead to harm if certain circumstances occur. Instead of a speed limit of 25 MPH in a residential area, imagine possessing a car being a felony. Now you get the idea of how bad prior restraint based laws that concern firearms are.

The "assault weapons" ban is dead. At least for now. Let me remind you of the resolve of our opposition:

"I do not intend to give up. Next year, I will come back with a better bill and attach it to anything I can. I will come back, and back, and back..." Diane Fienstien

I know you want to celebrate & honestly I badly want to take a few days off from everything & not hear anything that even rhymes with "senate". But we have a choice to make. It's one we must make now & it's one that's very important:

Offense or Defense?

We've seen an end to an awful law, but because the law was in effect until it sunsetted no big ground was gained by us. Ideally it should have been put down by a judicial action within the first hours of its enactment (assuming w could have gotten a judge to hear a challenge to it that quickly) but this was not the case.

The only thing barring another "assault weapons" ban from being enacted, & perhaps a stricter one, is you & I keeping pressure on our reps in congress to not do so. If we become quiet or our opposition becomes louder then congress would have no guilt over passing another such law. If a court had struck it down it would be different, but that's not what happened.

So the choice is ours: we can set up to play defense & wait for Difi or some other statist bastard to propose & push for another heinous violation of our Rights, or we can go on the offensive & take the battle to them.

I've disagreed with very distinguished people in the Right to Arms struggle over the best strategy we can take to protect our Rights. Most notably in a post I wrote last year called Why the NAACP strategy won't work for gun owners (A response to Dave Kopel's condemnation of the Silveira v. Lockyer case).

The gist of it is the anti-gun lobby is using an incrementalist approach; they're not trying to ban everything all at once, but rather piece by piece. One category of guns &/or gun owners at a time until we have nothing left but distant memories of muzzleloaders. The pro Right to Arms folk have adopted, or at least advocate what could be called the NAACP strategy.

The NAACP did not attempt to end segregation & discrimination in one fell swoop. They picked battles here & there over little things & built them up into bigger things until finally they could make strong & forceful cases for broad changes in how the government & society treated black people. For them it worked, so quite a few pro Right to Arms people think it'll work for us.

It won't.

The NAACP, like the anti-gun lobby started off with little to nothing. They had to gain ground for every step they took. We on the other hand started off with a very clear acknowledgement of our Right to Arms. What we have now is not what we've gained, but parts of what we've defended.

Imagine the Right to Arms is a city on a hill. The anti-gun lobby is an invading army bent on conquering the city on the hill & annihilating it. It would be folly to defend that city on the hill one section at a time. While repelling boarders at a part of the east wall, they'd over run the entire west & south walls. What is necessary is a defense of the entire city - not just parts of it.

But defense can only last so long. It's true that we have the high ground & every step the anti-gun lobby climbs towards us wears them out a little more. But a city under siege can only last so long, especially when parts of it have already fallen to the enemy.

What we should do is shore up the defense of he parts we hold as best we can. But we cannot stop there or eventually even those parts will be over run. What we must do in addition to defending what we have is gain ground back: retake the parts of the city infested with the carpetbaggers.

To do this we need to not rest on our laurels & gloat about having normal capacity magazines again. We need to launch an offensive. We need to work towards the repeal of one of the prior restraint based federal gun control laws.

The courts are not our friend in this cause, & neither is the legislature. But with the legislature we still hold some sway, as evidenced by the fact that today you can put a folding stock on your Ruger 10/22 & not worry about doing the next 5 to 10 years in a federal prison. What we need to do is push for the legislature to repeal one of the big 4 federal gun control laws; those 4 being (in order of enactment) the National Firearms Act of 1934; the Gun Control Act of 1968; the Hughes Amendment to the Firearms Owner Protection Act of 1986; & the Brady Law of 1994.

Of those the NFA is the most vulnerable from a constitutional standpoint. However it'll take a helluva PR campaign to sway public opinion in our favor. Of course the public's misconception of gun control is something we ought to have been trying to alter since 1935, but I won't argue that it'll be an easy battle.

I'm open to your thoughts on which one we should go after first. I'll even entertain arguments against us going on the offensive. But I'll tell you right now that unless we start going on the offensive & just as importantly putting the anti-gun lobby on the defensive, then we will continue to slowly but surely lose ground.

So celebrate. Rejoice. Shoot paper targets & tin cans without wearing out your thumb reloading magazines every ten shots. But think about what we have to do come Tuesday. It's a long, long fight we have ahead of us & I don't look forward to it. What I would dread even more is looking into a child's eyes & explaining to him that because we stuck to a defensive game he can't ever hold the tool used to defend free people in his hands, as they're all verboten to peasants.

& despite my less than joyful tone I do sincerely thank you all for your efforts in the first few battles of a long war.

Posted by Publicola at September 13, 2004 04:52 AM

Oustanding article, Publicola! You are the only one so far to write about what our next step should be. Yes, we won a great victory for the Consititution and the Second Amendment today.

But what is next? I attended the AEI seminar in Washington today about the AWB and heard someone ask a question to John Lott and AGS's Jim Kessler about what is next? Kessler thought we'd be fighting the same fight again next year.

I thought as I heard the answer, "What crap. To win a war means taking the fight to the enemy." To often we have been reactionary in this fight, only fighting when we had to. I agree with you 100%--we need to take the fight to these bastards.

I think it will be hard to knock down the entire '34 NFA, '68 GCA, or the Brady background check. I think a targeted approach to the more onerous, yet more obscure facets of Federal firearms law will pay off in the short-term.

My first proposal would be a repeal of the 1986 MG ban. Wrap it up in the guise of allowing people to register new Class 3 firearms instead of having them unregistered. Whatever excuse Congress buys doesn't matter--strike the law out of the law books is the ultimate goal.

Or two, if new machine guns turn out to be too controversial, let's add legislative language to strip out any mention or definition of "sporting firearms," such as Rep. Paul's HR 153 tried to do this session. Knock out the sporting arms definition would go a long way to restoring the intent of the original amendment.

But hell, if someone wants to push a bill deleting all of the NFA or GCA, I'm not going to stand in the way...

Posted by: Poshboy at September 13, 2004 09:45 AM

Even though I can't really afford it, I feel a sense of obligation to go out and buy a previously banned "assault weapon" now that the ban has expired.

I'm soliciting recommendations for specific weapons on my site, but would be interested to hear your suggestions, as well.

Posted by: Spoons at September 13, 2004 10:33 AM

National Firearms Act of 1934; the Gun Control Act of 1968; the Hughes Amendment to the Firearms Owner Protection Act of 1986; & the Brady Law of 1994.

The '86 MG ban can be fought as simple protectionism. Give us free trade!Lokewise any part of any law that mentions importation.
The '34 Act can be chipped at by repealing the prohibition on suppressors as a Health and Safety measure. Brady can be attacked on the basis that NICS makes it obsolete.
Chip, chip, chip. And never quit.

Posted by: Billll at September 13, 2004 05:45 PM
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