Firearms Control: Time for a Common Sense Bargain

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Firearms Control: It’s Time for a Common-Sense Bargain

Firearms Control: It’s Time for a Common-Sense Bargain
Trading an assault weapons ban for reducing federal police presence.
November 29, 2023, 11:05 PM

The last 50 years have confirmed Judge J. Harvie Wilkinson’s warning against a Supreme Court interference on abortion and gun control measures. The contending factions on these two issues — since the first was nationalized by Roe v. Wade and the second by the Supreme Court’s Columbia v. Heller and, more importantly, McDonald v. Chicago decisions — have embittered American politics. Until the recent Dobbs v. Jackson Women’s Health Organization decision, rational discussion of abortion policy was impossible, even though Roe helped cause rates of unwed motherhood to spiral from 4 percent of all births to 40 percent.

The Heller decision, which limited overly intrusive federal firearms regulation, was defensible in light of the fact that the Second Amendment, part of the Bill of Rights, was a ‘federalism amendment’ designed to limit national government but not state government power. (READ MORE: A Message for Gov. Newsom From a Devoted Follower)

Madison said in Federalist No. 46 that “[b]esides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition.” The militia whose arms were protected by the Second Amendment was not merely, as contended by liberals, the state’s national guard units but their ‘unorganized militias’ which then, as now, were defined by statute as including all of a state’s male able-bodied inhabitants.

Firearms Are a Barrier to Federal Dictatorial Imposition
The Second Amendment, like the militia clauses and restrictions on military appropriations and officer appointments in the original Constitution, was founded due to the fear of a standing army like those that had existed under Charles I and Cromwell in England and on James Madison’s insight that the widespread ownership of what were then typical weapons was a barrier to federal dictatorial imposition.

Thomas Macaulay wrote of the parliamentary creation of Cromwell’s army that “while the Houses were employing their authority thus, it suddenly passed out of their hands. It had been obtained by calling into existence a power that could not be controlled. In the summer of 1647, about twelve months after the last fortress of the Cavaliers had submitted to the Parliament, the Parliament was compelled to submit to its own soldiers.” (READ MORE: An Imperfect Compromise on Assault Rifles)

At the Philadelphia convention, Roger Sherman of Connecticut explained: “If the Executive can model the army, he may set up an absolute Government.” Washington’s Farewell Address warned against “overgrown military establishments, which under any form of government are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty.”

The subsequent McDonald 5-4 decision applying the Second Amendment to the states, whose militias were supposed to curb federal impositions, appears wholly illegitimate. It raises the specter of federal neutralization and supersession of state-level law enforcement. In Cohens v. Virginia, Chief Justice Thurgood Marshall declared in 1821 that Congress had “no general right to punish murder committed within any of the States” and further stated that it was “clear that Congress cannot punish felonies generally.”

The fact that there are a million state and local policemen and only a tenth that number of federal law enforcers is, as Justice Robert Jackson frequently reiterated, a bulwark of American liberty. A federal police force a million strong would be uncontrollable by anyone; even our much smaller present FBI has unduly interfered in political elections.

It’s Time to Make a Compromise
No one in the late 1930s questioned that the federal government had the right to limit private possession of machine guns to prevent further St. Valentine’s Day massacres by prohibition-era gangs. The use of semi-automatic weapons by drug gangs raises similar problems. Such weapons are not necessary for home or personal protection, nor was anything resembling these weapons available at the time the Second Amendment was enacted.

These are not the weapons of militias, organized or unorganized, but of armies and criminal collectivities. Nothing in the Supreme Court’s new doctrines prevents the revival of the semi-automatic federal weapons ban. Mass killings with automatic weapons are a small fraction of all killings, but they have escalated and should not be permitted to escalate further, thus allowing ‘gun controllers’ to make sweeping arguments for the prohibition of private ownership of all weapons.

But there is another form of regulation urged by miscalled ‘liberals’ that is to be feared. That is the provision of the Clinton crime control legislation allowing federal injunctions to regulate the behavior of state and local police forces. These, in Baltimore, Chicago, and other places, have limited the capacity of states and cities using constitutionally protected armaments to keep order in their own house. Their failure to do so inevitably gives rise to demands for expanded federal intervention to suppress street-level crime and the growth of uncontrollable federal institutions.

In his lectures on the Supreme Court published in 1955, Justice Robert Jackson said:

I cannot say that our country could have no central police without becoming totalitarian, but I can say with great conviction that it cannot become totalitarian without a centralized national police.… All that is necessary is to have a centralized national police competent to investigate all manner of offenses and then, in the parlance of the street, it will have enough on enough people, even if it does not elect to prosecute them, so that it will find no opposition to its policies. Even those who are supposed to supervise it are likely to fear it. I believe that the safeguard of our liberty lies in limiting any policing or investigative organization, first of all to a small number of strictly federal offenses and secondly to nonpolitical ones.

Federal prohibition of semi-automatic weapons is a common-sense measure not impacting the rights of ordinary citizens to discourage and repel assaults on their persons, homes, and businesses. The new federal injunctions and consent decrees, with their near-doubling homicide rates in some places, directly assail individual rights to personal security and police protection. Former Attorneys General Sessions and Barr imposed a four-year pause on efforts to impose injunctions and consent decrees, which have now been revived, but which still affect only a few large cities and thus are not a huge political issue in the country. (READ MORE: DeSantis vs. Newsom Nov. 30 Debate: What to Expect)

Rational reform would couple a revived federal assault weapons ban, together with efforts to limit the growth of federal law enforcement forces and federal interference in street-level policing. A revived federal assault weapons ban should be traded for withdrawal of the authorization of federal injunctions and consent decrees and a reduced federal role in the ‘drug war’, including repeal of federal bans on simple possession of drugs (never before attempted, even under the Volstead Act of the Prohibition era) and an end to the federal ban on the use of financial instrumentalities by state-licensed dealers in drugs, an invitation to tax evasion and a gift to the underworld. The effect of these measures in combination would be the restriction of federal force to major military threats, exclusion of federal street-level policing and the growth of federal agencies, and restoration of responsibility for street-level law enforcement to the States, where it belongs.

George W. Liebmann is the president of the Library Company of the Baltimore Bar and the author of works on law and public policy, most recently The Tafts (Twelve Tables Press, 2023).

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Posted in: Criminal Justice, Culture Wars, Drugs, Judiciary and Legal Issues, State and Local Politics, Urban Affairs

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