“I ask, sir, what is the militia? It is the whole people, except for a few public officials.” – George Mason, Virginia Ratifying Convention, June 1788
Over the weekend, two more unspeakably tragic mass murder atrocities tore our beleaguered nation — already grieving from a tribalized citizenry, an invective-spewing culture war, and a most supercilious media praetorian guard — increasingly asunder. There are truly no words to adequately bemoan such raw carnage.
To be sure, red-blooded American patriots may take solace in the magisterial conclusion of Abraham Lincoln’s Second Inaugural Address — “[w]ith malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds …” — as a source of continuing optimism. If Lincoln could voice such auspiciousness at the nadir of the Civil War, I sometimes ask myself, how can I not be anything other than sanguine about the future of the republic? Yet that optimism, frankly, remains exceedingly difficult to muster at times.
Today is one such day. Today, we grieve for the fallen, pray for the wounded, and beseech the Almighty to pardon the iniquitous ways of such a self-destructive populace as ours. But as conservatives, no matter how dour the national mood, we must do our absolute best to remain sober-minded about the tasks and issues confronting us.
As my colleague Michael Knowles told Daily Wire Editor-in-Chief Ben Shapiro on Ben’s “Sunday Special” podcast yesterday, conservatism is just as much a disposition and an inclination as it is a substantive dogma. When National Review founder William F. Buckley, Jr. famously announced that the goal of his then-fledgling journal was to “stand athwart history, yelling Stop,” he was fundamentally channeling the quintessence of Edmund Burke himself. The goal of the conservative is to resist the ad hoc caprices and passions that envelop the Twitter cognoscenti. Ours is not to be irrationally fixated upon the past and to resist any and all change — but ours is to demand that serious legislative change be well-calibrated, narrowly tailored to redress a specific societal ill, and properly honed upon the pursuit of man’s fundamental natural dignity and Aristotelian human flourishing.
Viewed through this lens, the editorial today at the reliably conservative New York Post that calls for a ban on the cosmetically amorphous class of guns routinely deigned as “assault weapons” deserves serious rebuke. As a threshold matter, the Post editorialists have caved to knee-jerk, news cycle-induced alarmism and, in so doing, have fundamentally failed to uphold the Burke/Buckley conservative disposition.
But let’s focus a bit on the substance.
The Post, to its mild credit, argues that “the next [‘assault weapons’] ban should be better written, with a clear definition focused on factors like firepower — rate of fire, muzzle velocity, etc. — [and] not on cosmetic features [like the 1994 – 2004 ban did].” But the reasonable conservative ought to ask the following question: In a society in which fully automatic weapons are already (for all intents and purposes) banned under the National Firearms Act of 1934, how can legislators plausibly draw a coherent line about banning new classes of weapons based on such arcane technicalities as muzzle velocity? What on earth is the logical limiting principle here? The gun-grabbing Left, which supports something closely akin to a full ban on all semiautomatic weaponry, would be fully empowered to pursue a far broader-ranging ban on semiautomatic handguns. As for rate of fire, such a metric is deeply individualized and can hardly be standardized at all. I have personally seen videos of skilled marksmen firing a semiautomatic rifle at a higher rate of fire than a “bump stock”-equipped equivalent rifle.
The Post next cites the landmark 2008 U.S. Supreme Court case of D.C. v. Heller for the proposition that “assault weapons” do not meet the “in common use” criterion that Heller deemed legally requisite for a class of weapon to attain constitutional status. Absolute nonsense. As Justice Clarence Thomas noted in his 2015 dissent from the Court’s denial of a writ of certiorari in the Seventh Circuit case of Friedman v. City of Highland Park, Illinois:
The City’s [“assault weapons”] ban is … highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. … The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. … Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
The Post, echoing the very worst of the gun-grabbing Left, continues to denigrate the modern-day sporting rifle in the most noxious of terms. “Our Founding Fathers gave us the right to bear arms in a time of muskets,” the Post editorializes. “They did not foresee a time when one 21-year-old could kill 20 people in the span of minutes thanks to poisonous beliefs and an assault weapon.” What absolute drivel. The Founding Fathers also did not foresee that the First Amendment would one day secure the right to YouTube or Amazon — or that the Fourth Amendment would one day secure the people against warrantless government snooping of Gmail.
But more fundamentally, as National Review’s David French has articulately argued, “assault weapons” secure the very purpose of the Second Amendment, in defending against government tyranny. “The argument is not that a collection of random citizens should be able to go head-to-head with the Third Cavalry Regiment,” French wrote last year. “Rather, for the Second Amendment to remain a meaningful check on state power, citizens must be able to possess the kinds and categories of weapons that can at least deter state overreach, that would make true authoritarianism too costly to attempt.”
The contemporary modern sporting rifle — “assault weapon,” as detractors label it — is nothing less than the 21st-century equivalent of the single-shot muskets that served the Minutemen at Lexington and Concord. The weapons serve the precise same purpose: A deterrence against tyrannical state overreach.
We once again close with the epic 2003 dissent from a denial to rehear a case en banc from then-Judge Alex Kozinski (a son of Holocaust survivors) of the U.S. Court of Appeals for the Ninth Circuit, in the case of Silveira v. Lockyer:
[T]he simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). …
All too many of the other great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Shame on the Post’s editorial board for, as Kozinski put it, “forg[etting] these bitter lessons of history.” Conservatives must not yield on the issue of preserving the right to own “assault weapons.”