by Dave Kopel
Colorado Statesman, Mar. 17, 1989.
Why would any sane person own an assault rifle like the AK-47? s Why are military guns such as the Soviet AK-47 and the Israeli Uzi available to maniacs like Patrick Purdy -- who last January murdered five children in Stockton, California with a Chinese version of the AK-47.
Inflamed to a white heat over the shootings, the California legislature may ban all military-type weapons. U.S. Rep. Howard Berman (D-Calif.) has introduced a Congressional bill to confiscate all military-style guns in civilian hands. Sen. Howard Metzenbaum (D-Ohio) prefers to confiscate some weapons, and tightly regulate others.
The anti-gun lobby argues that no hunter needs a rifle capable of holding 50 bullets in its magazine. No sportsman really needs the semi-automatic firing capability of an Uzi or an AK-47. (A semi-automatic gun requires a new trigger squeeze for each bullet fired, and automatically ejects the empty shell casing.)
True enough, no-one needs an Uzi to kill innocent deer for sport. But to defend one's family from murder, Uzis and other semi-automatics are sometimes essential.
For example, pleasure boat owners in the Gulf Coast have been stocking up on Uzis. Why? Because drug smugglers commonly pull alongside a pleasure boats, murder all the passengers, use the boat to transport a load of drugs to the mainland, and then abandon the boat. The drug runners do their killing with high-powered guns stolen from the military, or bought on the same international black market that supplies cocaine by the pound.
Boat owners who hope to survive an encounter with the smugglers must arm themselves with reliable, military-style weapons capable of firing at several attackers in quick succession.
The typical urban homeowner, of course, doesn't need an AK-47 to confront a lone burglar; a revolver or a shotgun will suffice. But anyone who reasonably fears attack by a gang --such as a store-owner in the middle of a Miami riot -- could reasonably conclude that the rapid-fire capability of an Uzi or AK-47 would mean the difference between life and death.
In rural areas, farmers who may confront a bear attacking their livestock also carry assault guns. Bears don't fall down after being shot just once. Rugged and reliable, military style guns can be bounced around in a pickup truck, frozen on a winter night, caked with mud, and still fire with absolute reliability. Further, the best military guns, such as the Uzi, have excellent safety mechanisms that make them more childproof than any other gun.
More fundamentally, the Constitution -- despite what the NRA claims -- does not protect a right to hunt, nor does it protect a right to own guns solely for hunting. The Second Amendment states: "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."
The militia -- not hunting -- is the core of the Second Amendment. Thus, as the Supreme Court declared in U.S. v. Miller (1939), guns that are useful for the militia are protected by the Constitution; non-militia guns are not protected. Thus, it is precisely the AK-47s, Uzi's, and other civilian versions of military guns, that are most clearly secured by the right to bear arms.
"Who are the militia?" asked founding father George Mason of Virginia. He answered his own question: "They consist now of the whole people." Before independence was even declared Massachusetts patriot Josiah Quincy had called for "a well-regulated militia composed of the freeholder, citizen and husbandman, who take up their arms to preserve their property as individuals, and their rights as freemen."
In U.S. v. Miller, the Court echoed the founders' clear understanding of the militia: "all males physically capable of acting in concert for the common defense...expected to appear bearing arms supplied by themselves and of the kind in common use at the time." The modern United States Code follows the Constitutionally-mandated definition, making subject to militia duty all able bodied males between the ages of 17 and 45.
The Second Amendment guarantees a popular militia in order to provide for "the security of a free state" -- ensuring that there will always be a force capable of overthrowing a domestic tyrant, or of resisting an invasion by a foreign one.
Anti-gun groups argue that the militia concept is obsolete, in light of advances in military science. Yet that argument is at odds with contemporary history.
The mujahadeen guerrillas in Afghanistan fought the greatest military power in the world's history to a draw for seven years, before U.S. Stinger missiles finally arrived. In that period, the Afghans used, among other weapons, AK-47's supplied by the Chinese, or captured from the Soviets.
In the months after Pearl Harbor, Japan seized several Alaskan islands, and military strategists feared more Axis landings. But the regular army and the National Guard had been sent overseas into combat. So the Governors of Hawaii, Virginia, and Maryland called the militia to duty. Maryland Governor O'Conor summoned "members of Rod and Gun Clubs, of Trap Shooting and similar organizations," to "furnish their own weapons" for the purpose of "repelling invasion forays, parachute raids, and sabotage uprisings," as well as patrolling railroads and beaches.
It has been more than 40 years since the last invading troops left American soil. No invasion is plausible in the foreseeable future. But Constitutional rights are for all time. Only the most naive believer in American omnipotence or the nuclear umbrella can feel certain that America will never again need the militia.
Even if an act of God forever shielded America from foreign invasion or domestic tyranny, there is still the risk that America may again find itself in an overseas war. Basic training is hardly enough time to master an assault rifle. A study by the Arthur D. Little research firm concluded that shooting experience with "military type small arms prior to entry into military service contributes significantly to the training of the individual soldier." In the next war, American soldiers who have learned about military rifles as a civilian hobby will likely save the lives of their fellow soldiers whose only experience with firearms is a membership card in Handgun Control.
Even if assault guns were useless for personal and national defense, even if there were no Second Amendment, a ban on such weapons would be futile.
In Australia a few years ago, two motorcycle gangs used semi-automatics at a bloody shoot-out dubbed "The Milperra bikie massacre." The Labor government of New South Wales, Australia's most populous state, outlawed possession of semi-autos. But less than 1% of gun owners complied. In the subsequent election, the N.S.W. Labor party suffered its worst loss in half a century. The party's leader resigned, admitting, "I must accept the major proportion of the blame for the defeat, particularly in terms of my decision on the gun issue. ." New Premier Nick Greiner rescinded the ban, stating that it was "clearly unenforceable and made criminals of decent, law-abiding citizens."
Decent American citizens who own semi-auto's won't obey a ban either. Neither will real criminals. Fortunately, criminal use of assault rifles is relatively rare, since, according to the National Institute of Justice studies, criminals prefer the portability and concealability of a handgun or a sawed-off shotgun.
Yet those criminals who want an assault rifle will easily find one, even if by some miracle, the government manages to confiscate all the legally and illegally-owned semi-automatics. A competent backyard mechanic can build a fully automatic rifle. (In a full automatic, bullets continue to fire as long as the trigger stays squeezed). Indeed, Afghani peasants, using tools considerably inferior to those in the Sears catalogue, have built automatic rifles capable of firing the Soviet AK-47 cartridge.
Criminals, though, would not need to buy guns from backyard mechanics. The day that semi-automatics become illegal, organized crime will swiftly supply the criminal market with mass-produced illegal guns. Tulane Professor James Wright argues that gun controls are less likely to reduce the pool of criminal guns than to provide organized crime with lucrative new business.
Even if a complete ban on assault weapons is bound to fail, aren't there some gun controls that could keep these weapons away from the likes of Patrick Purdy? No.
Handgun Control is beating the drums for a waiting period and background check on the purchase of semi-automatics. But California already has a 15 day waiting period for handgun purchases, and Purdy bought five handguns there. If waiting periods are failures for handgun control, they won't succeed at semi-automatic control.
What about an even stricter investigative check on semi-auto buyers? Since 1934, anyone who wishes to buy a fully automatic weapon, such as the Thompson Submachine gun, must pass a rigorous licensing process that requires a federal fingerprint check and background investigation, a letter of permission from the local police chief, a six month wait, and hundreds of dollars in fees and taxes. The system works marvelously; no licensed automatic has ever been used in a crime.
And the system is a total failure. Automatic weapons, including the hundreds of thousands of guns missing from U.S. military arsenals, are readily obtainable, even by teenage gang members. A system that can't control full autos won't work any better on semi-autos.
A part-time Los Angeles prostitute, Patrick Purdy had already been arrested for an illegal weapons felony. It is ludicrous to expect that criminals like Purdy, adept at operating in the shadows of society, will not know how to obtain an illicit gun.
Only one control could have kept Patrick Purdy from slaughtering the children. Prison. Patrick Purdy had arrests for dangerous weapons, receiving stolen property, criminal conspiracy, and attempted robbery. Yet after every arrest, he escaped with no more than a misdemeanor conviction, and was put back on the streets.
In 1987, Purdy was caught shooting at trees in El Dorado National Forest. Resisting arrest, he assaulted a police officer and kicked out the back window of the police cruiser. When Purdy came up for parole after only 45 days, the parole report noted that he had attempted suicide in jail, smeared his jail wall with blood, and had been found in possession of white supremacist literature. The parole report called Purdy "a danger to himself and others." The parole board let him go.
Covering the evidence of failure, California's criminal justice authorities have ordered Purdy's criminal and mental health records sealed. Los Angeles Police Chief Daryl Gates and California Attorney General John Van De Kamp ought to be asking why their agencies didn't do their job of controlling Patrick Purdy.
But instead, these officials are pushing the California legislature into a futile gun ban. Passing gun control bills during moments of hysteria takes no political courage, and costs no money. Reforming California's criminal justice system --starting with the Los Angeles Police Department -- has neither of these advantages. But criminal justice reform may stop the next Patrick Purdy. Gun control won't.
More on the subject of so-called "assault weapons" is available here.
