Why Stop With the AR-15?

A well-regulated militia USA Today Sports

Here are two pro-gun arguments, from people who are not bots and who don’t go in for the “you libtard cuck!” style of discourse. Obviously I disagree with their perspectives. But because they’re making sustained versions of two main arguments against current gun-control measures, I quote them at length.

The first argument is that it’s meaningless to concentrate on one weapon, the AR-15, even though it has been used in the most notorious recent gun massacres. A reader writes:

I am an avid firearms enthusiast, and I own an AR-15 rifle.

One of your articles begins as follows: "I’ve argued over the years that the AR-15 is a weapon designed for the military, which was never meant to be in civilian hands. Dissenting arguments fall into three main categories: slippery slope (any step toward gun regulation is really a step toward confiscation and prohibition); pointlessness (disturbed people will always find a way to kill); and hypocrisy (how can you complain about gun killings, when abortion goes on?).”

I would provide you with a fourth dissenting argument: functional non-uniqueness. The AR-15 style rifle was introduced into the civilian market in the early to mid 1960’s, not long after its fully automatic variants were introduced to the military. While the rifle was indeed originally designed for the military, there is nothing notable about that fact.

Such is the case for all semi-automatic rifles, both “assault"-style and wood/steel traditional style, bolt-action rifles, lever action rifles, etc. I would encourage you to research the M1 carbine, M1A, and M1 Garand. These rifles have all been used in the US military, but none are ever mentioned in the context of an “assault weapons” ban. Indeed, they would not even be affected by any such legislation. [JF note: as non-peevishly as I can, I’ll point out again that I researched and wrote in detail about the engineering and wound-ballistics history of these Army weapons, back in the 1980s, in my book National Defense and in this Atlantic article.]

AR-15 and AK-47 rifles are not functionally different from other semi-automatic rifles. You cannot provide any evidence to the contrary of that fact.

Are they fully automatic? No. All firearms available to civilians in this country are semi-automatic, which is a very different mechanism.

Do they have a particularly high rate of fire? No. The rate of fire of an AR-15 or AK-47 style rifle is no different than that of a handgun. [JF note: Without getting into all the details, I’ll note that this is a hotly contested claim.]

Do they fire particularly powerful rifle ammunition? No. In fact the AR-15 is illegal for deer hunting in many places because it tends to use very low-powered ammunition. I’ve recently read articles that compare AR-15 ammunition to handgun ammunition and arrive at the conclusion that the AR-15 is so powerful that it must be banned. What’s missing is a comparison to other rifles. Virtually all rifles are more powerful than the average handgun. Such does not render the AR-15 different.

Do they have a particularly high magazine capacity? No. Ammunition capacity is determined by the size of a magazine, a separate instrument from the rifle. Nothing about an AR-15 or AK-47 style rifle allows it to take larger magazines than any other firearm that also uses detachable magazines. What makes them different from the aforementioned military rifles such as the M1A? The answer is… appearance.

Look at the actual text of “assault weapons” bans, and you’ll see that this is the case. They almost always concern semi-automatic rifles (not automatic rifles) that have some scary-looking components such as pistol grips, barrel shrouds, flash-hiders, or adjustable stocks.

You cannot tell me how an adjustable stock renders a rifle more dangerous than a rifle without one. Nobody can. The only reason these features are present in the legislation is to make legislation (that everybody knows will not reduce gun-related deaths) politically easier to pass. It’s easier to get votes when you can put up a poster of a particularly scary-looking gun on the senate floor.

Take the Ruger Mini-14, for example. It fires the same bullet as the AR-15. It has readily available magazines in all sizes. It has the same rate of fire as an AR-15. It is of a similar size and weight. And yet, it is often specifically exempted from "assault weapons” bans, because of its traditional and “innocent” appearance.

Firearms are dangerous instruments. Nobody disputes that. But your series of articles presumes that the AR-15 and AK-47 style rifles that millions of law-abiding sportsmen safely enjoy are somehow more evil and deadly than other firearms. That they have been used in certain high-profile shooting attacks does not prove the point.

Virginia Tech was committed with handguns. The Norway attack was committed with a hunting rifle and a handgun. Since the AR-15 is the most common rifle in the United States, it will undoubtedly be used in some murders, including horrific tragedies such as Las Vegas. Trying to ban it is tantamount to attempting to combat drunk driving by banning scotch or vodka.  

A better comparison might in fact be a ban on only very expensive scotch, because these rifles are used in a very small proportion of murders (mass shootings notwithstanding, but handguns are still more prevalent in the commission thereof), just as I imagine most drunk drivers are not intoxicated on 25 y.o. Lagavulin.

If you believe that all semi-automatic firearms or all semi-automatic rifles should be illegal or highly restricted, such may be your opinion and that can be reasonably debated. But at least be logically consistent.

Don’t say that you’re okay with some semi-automatic weapons, but that certain ones with a menacing appearance and a “military-sounding” name ought to be banned. I’ve shot a great deal of weapons. I promise you that AR-15 and AK-47 style rifles, while powerful, as all rifles are, are by no means functionally unique.

I’m deliberately not engaging this message line-by-line. But to its closing point I’ll say: I understand that the AR-15 is not functionally unique. Thus anyone who argues that the AR-15 should not be in civilian hands should be willing to extend the argument to similar weapons. That’s what I think about the AR-15, and and I say the same thing about functionally similar weapons.


Nest, here is a message from a reader who in his day job is a successful novelist, but who has not asked to be identified in this discussion. He well represents a second argument: The Constitution has settled this issue, so for better or worse we’re stuck with the current reality. He writes:

Two points:

First, the Constitution trumps (if you’ll pardon the expression) all prudential and policy considerations.  It makes them utterly irrelevant.

If the Constitution forbids something, it doesn’t matter how bad the consequences are:  you just have to suck it unless you can get an amendment through, which was deliberately made virtually impossible without an overwhelming, persistent, and geographically widespread consensus.

Note that the Constitution is chock-full of “veto points.” This was not an accident; it was intended to establish a form of government that would seize up in creaking, popping stasis if it tried to do anything any really substantial number of citizens intensely disliked, and which in any case could not act quickly, precisely to frustrate momentary “storms of passion,” one of which we’re having now.  

It’s an ideal set of institutions to empower people hunkering down and playing rope-a-dope delaying actions against demands to “do something” and waiting for the public to get tired and move on.  

Frustrating, isn’t it?

Secondly, the Second Amendment does not refer to “civilian” guns, for hunting or personal protection; as an aside, a knife is probably better than a handgun for the latter. Most people, even police with some training, miss even at point-blank range with pistols in an actual confrontation. I don’t carry a gun, myself; I carry a flick-knife, specifically a six-inch Tanto folder. Much safer, much more useful in a pinch, and you can cut string and open packages from Amazon with it.

But back to the main issue:

The Second Amendment refers specifically to military weapons, the mass-produced ones used to equip armies, the precise equivalents of assault rifles.

At the time, with the exception of black people in some states, generally speaking any American citizen could privately and of his own individual will own anything he wanted in the way of weapons.

You could own a musket, you could own a rifle, you could own 10,000 muskets and rifles, you could put cannon on a ship you owned and have your very own warship, you could have a swivel-gun loaded with grapeshot on your front porch and pointing down the path to the public road and a piece of burning slow-match in your hand.

You could build a fortress in your south pasture and stock it with 68-pounder siege guns and a furnace for producing red-hot shot and 1,000 tons of ammunition, if you could afford it; your home could be quite literally your castle.

The Second Amendment, in line with the ‘natural rights’ theory of the time, aimed to codify and preserve this "natural" state of affairs.

The intense suspicion and dislike of "standing armies" at the time sprang from the same root.  

People didn’t want the government to have a monopoly on the means of political coercion, and as was well understood long before Max Weber stated it, “violence is always the ultimately decisive means of political action.”

Or “who whom,” as Lenin phrased it.

The intent of the Second Amendment was to weaken the central government.

At the time of the adoption of the Constitution, the states could regulate weapons, since the Bill of Rights didn’t apply to state action—hence states could censor the press, or have established religions paid for out of general taxes, or endorse slavery.

But the post-Civil War amendments (13th through 15th) generalized the Bill of Rights and made it binding on state action just as it is on the Federal government; the case law is unambiguous.

Isn’t the “Law of Unintended Consequences” grand?

Comparisons to airplanes or autos are irrelevant. They’re not in the Constitution. Guns are; or more specifically, “arms” (weapons) are.  Selah, QED.

I wrote back to him saying that he’d notably avoided using the word “militia,” as in “a well-regulated militia”—and that until a few decades ago, jurists appointed by Republican and Democratic presidents alike reasoned that protection for “well-regulated militia” did not mean the untrammeled right for anyone, anywhere to have a military-inspired weapon. (Research resources on this point: Michael Waldman’s excellent book The Second Amendment: A Biography. Also this video of then-retired Chief Justice Warren Burger, a very conservative figure who was appointed by Richard Nixon, saying that Second Amendment absolutism was “one of the greatest pieces of fraud, and I repeat the word fraud, by special interest groups” in modern history. Also, “The Second Amendment Hoax” by Dahlia Lithwick in Slate. )

The novelist wrote back to say that if I were harking back to previous Supreme Court views, then presumably I’d like their rulings from the days before integration. I said: You want to equate the gun change (from Warren Burger’s practicality to Antonin Scalia’s absolutism) with the change in racial-rights rulings from Plessy v. Ferguson (which endorsed segregation) to Brown v. Board of Education (which outlawed it), be my guest.

And so on.

For now I’ll say: Read the arguments, see where we can go from here.

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Previously in this series:

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BONUS

If you’d like to see the “full” response from the novelist, about militias and such, here you go. Presented in the interest of airing the range of opinions.

Actually my first draft did mention the militia, but I cut it for brevity's sake.  But hey, brevity isn't my thing, so here we go on the historical context:

>I notice that you avoid using the term "militia," which is so prominent in the Second Amendment (and which obviously complicates modern readings like the one you offer).

-- at the time, "militia" did not mean a government-directed institution like the National Guard.

States "regulated" the militia, mostly by legislating that all males had to join it, specifying weapons and gear, specifying when/how often it had to meet, and occasionally in some places sending round inspectors or instructors on muster days.  

They would also maintain stores of ammunition and spares to be handed out in emergencies (that's what the Lexington-Concord thing in 1775 was about).

But the militia was simply the citizenry of any given area, turned out with their weapons that they, not the government, owned, "Old Betsy" from over the mantlepiece loaded with buck and ball, or a rifle for frontiersmen.

The government did not usually select militia officers -- most often they were elected, or in the case of volunteer units, self-selected, or promoted by some local bigwig -- and it didn't control the weapons, which were mostly kept at home.

You could also start your own militia unit, if you felt like it -- most artillery companies got their start that way, as "volunteer" organizations of individuals who clubbed together to buy weapons and equipment, sometimes topped up from State arsenals, and offered them for use in case of emergencies.

(Or firing salutes on the 4th and at barbecues, which was more frequent.)

It was partly patriotism, and partly rather like contemporary LARP-ing or re-enactments, having fun by dressing up in fancy garb and playing with weapons while the neighbors watched.

At the time, the government at any level had little or no regular armed force at its command.  In the case of serious disorder, it had no recourse but to call out the militia -- over which, as I have pointed out, it had little control -- or to call for volunteers, which was a version of the same thing.

Essentially it had to gamble that it was more popular than any group of rebels or rioters; and that wasn't a foregone conclusion at all; Washington pulled it off during the Whiskey Revolt, but it was risky.  That was an armed standoff, with one side backing down when it saw it was outnumbered, not something that could be done automatically or regularly.

Rioting, and mobbing government officials, were more or less recognized means of political action and had been since time out of mind.  If you didn't like what the government was doing and thought you had public opinion on your side, grabbing its agents and beating the crap out of them or tarring and feathering them and riding them out of town on a rail or pointing a gun at them and suggesting they skedaddle was quite common.

(At frontier land auctions, for example, it was common for 'squatters' to show up with their rifles cradled in their arms, to make sure no outsider tried to raise the price over the minimum.  You would be very well-advised not to piss them off.)

Even things like debt collection could only function by popular consent -- hence Shay's Rebellion in Massachusetts.

There were no uniformed and armed police -- they were considered an "instrument of despotism", the sort of thing slavish, cringing Europeans put up with, a sentiment which still lives and breathes.

There's an interesting traveler's commentary from the 1830's by a New Yorker visiting New Orleans; a fight broke out on the docks, which was nothing new to him, but then people began shouting "Guards!  Guards!" and men in blue uniforms showed up and broke up the fight and carted off the ringleaders to the Calaboose (an actual New Orleans building, by the way).  

This was a survival of Spanish/French custom, and the New Yorker regarded it as weird and somewhat creepy.  Back home, the fight either burned itself out, or someone organized a spontaneous counter-mob to suppress it.

(The same was true in Britain in the 18th century; if a mob stoned a government minister's house or carriage, he usually just moved out of town for a while; in the Gordon Riots in the 1780's mobs took over the whole of London for days.  There was no middle way between doing nothing and troops firing cannon loaded with grapeshot down the street.  Things were worse in the US; witness the draft riots in Civil War New York.)

Law enforcement was useless night-watchmen, or elected and part-time sheriffs, who couldn't do anything without popular support in the form of posses or "raising the hue and cry".

If things got out of hand in a given area, in the US or the Colonies before that people would organize "Regulators" (18th century) or "Vigilance Committees" (19th century) and flog, hang, and ride people out of town on a rail to restore order.  Sometimes people would organize counter-Regulators, and then you'd have low-level civil war -- that happened in North Carolina before the Revolution, and several times in the West much later.

Note that at the time the Constitution was debated and adopted, the overall crime rate was much, much higher than it is today -- five or ten times higher for homicide, other violent crimes in proportion.  Some areas were more peaceful than others; the countryside near Boston was much more orderly than frontier Kentucky, which essentially had no law at all except what vigilantes provided.  But that was a matter of local popular preference and of how homogenous and long-settled an area was, not institutions.

If you've read Laura Ingalls Wilder's "Farmer's Boy" about her husband's childhood in upstate New York in the early 19th century, which was Yankee-settled and by American standards law-abiding, there are some eye-blinking incidents that are just casually assumed to be normal.  

A farmer who's just sold some horses sits up all night with a gun until he can get the money to a bank;  direct, credible and public threats of violence between men are common as dirt for settling disputes and enforcing community norms, including among respectable middle-class types.  

In most areas, while dueling was technically illegal, it was generally assumed that if two adult males wanted to fight and did so without bushwhacking each other or shooting up Main Street, that was their own business.  In really hairy areas, you had blood-feuds.

Rudyard Kipling got effectively run out of rural Vermont in the 1890's because he lodged a legal complaint after his brother-in-law publically threatened to punch his face in or possibly just shoot him in the course of a personal dispute.

Everyone (including the sheriff and his wife) warned him that this wouldn't work, but he went ahead anyway and got laughed out of the country -- he couldn't quite grasp that everyone, even in New England, expected him to take his coat off and slug it out behind the barn, or be held up to utter scorn as a sissy-boy.

In short, they just accepted that a fairly high degree of disorder, violence and occasional killing was the price of being self-governing.

Hence the "well-regulated" militia just meant "well-armed local citizens who meet to drill now and then".  

It didn't mean "obedient, disciplined servants of the State".