Hogwash: Pro- and Anti- ‘Assault Weapon’ Myths

There’s foolishness on both sides of the debate.

Myth #1: H.R. 1808, passed by the House of Representatives last week, would “reinstate the assault weapon ban.”

Joe Biden, Nancy Pelosi, and others are trying to dupe people into thinking the new ban is the same one that was in effect from 1994 to 2004. Biden also claims the old “ban” reduced crime.

They’re hoping to convince suburban women that the old “ban” made them safer and, therefore, the new ban will too. And they’re hoping to convince gun owners, who remember that the old “ban” didn’t really ban guns, that the new ban won’t either.

However, as I explained in this post, the old “ban” didn’t reduce crime. And, as I explained in this post, the new ban, unlike the old one, really would ban lots of guns.

Myth #2: The House passed the new ban to reduce crime.

Hardly. Democrats in the House don’t even think the ban will pass the Senate. They passed the ban (1) to please their anti-American “progressive” donors, (2) to rally Democrat voters before the midterms, (3) to distract everyone else from inflation, illegal immigration, violent crime, riots, the Democrats’ war on cops, their threats against Supreme Court justices, their insistence on a “right” to murder babies through the 9th month and on the delivery table, their “grooming” of children in public schools, Marxist “critical race theory,” and all of the other reasons people have to vote against Democrats now and forever, and (4) to send the bill to the Senate, to renew the Left’s demand to abolish the filibuster, which will rally Democrat voters closer to Election Day.

Myth #3: The debate over crime is relevant to whether a ban is constitutional.

It isn’t. In U.S. v. Miller (1939), the Court recognized that the people have the right to keep and bear arms that are useful for collective defense, such as “ordinary military equipment,” and other arms as well. No mention of crime.

In District of Columbia v. Heller (2008), which struck down the District’s handgun ban because handguns have been commonly used for protection throughout American history, the Court rejected leftwing Justice Stephen Breyer’s claim that it should have balanced the plaintiff’s interest in having a handgun for protection within his home, against the District’s interest in reducing crime. It said:

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. . . . Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

In New York State Rifle & Pistol Assn. v. Bruen (2022), which struck down an unusually restrictive provision of New York’s handgun carry license law, the Court said “To justify its regulation, (New York) may not simply posit that the regulation promotes an important interest” (preventing crime).

Myth #4: A pistol grip, forward grip, folding or telescoping stock, threaded muzzle, “buffer tube,” pistol brace, or other gun parts mentioned in H.R. 1808 are “cosmetic features.”

This myth, from the anti-ban side, was invented to fool people who don’t know anything about guns into thinking that AR-15s and AK-47s only look different from Grandpa’s squirrel rifle. However, the only people it fools are gun owners who think that parroting it wins the “assault weapon” debate.

Reality check: There’s not one single soccer mom in America who has ever decided to oppose banning “assault weapons” on the basis of the “cosmetics” hogwash. Even to people altogether unfamiliar with guns, the gun parts in question are obviously not cosmetic. They’re on firearms to serve specific purposes.

On a rifle, a pistol grip allows the rifle to be held more ergonomically, as with every pistol. A forward grip helps in controlling recoil. A telescoping stock allows the length of the stock to be adjusted to the user’s physique. A folding stock allows a rifle to be more compactly carried or transported when not in use. A threaded muzzle allows a flash suppressor (to reduce flash) or a muzzle brake (to reduce muzzle climb during recoil) to be attached.

On pistols that have them, a “buffer tube”—Democrats’ term for a receiver extension—encloses the pistols’ moving parts, and without it such pistols would fall apart. A pistol brace allows a pistol to be strapped to the forearm of a handicapped person who has only one hand. A threaded barrel allows for the attachment of a sound suppressor.

Myth #5: AR-15s and the like are “modern sporting rifles.”

Blame for this anti-ban myth goes to the National Shooting Sports Foundation. Maybe NSSF believes that its “sports” euphemism can convince soccer moms to not support “assault weapon” bans, or that it can protect rifle manufacturers from lawsuits.

Maybe NSSF believes that it will increase AR-15 sales to gun hobbyists who have only a passing understanding, or a faulty understanding, of the nature and purpose of the right to keep and bear arms, and no understanding of what it will take to convince the Supreme Court to declare Democrat gun and ammunition magazine bans unconstitutional.

Whatever the explanation, AR-15s, other than their lack of a fully-automatic firing option, are identical to the military’s M16-series rifles, which are obviously designed for warfighting purposes. Both rifles can be fired semi-automatically, and in the military, that’s the way in which it’s almost always done. Both rifles use the same magazines and ammunition.

But that only explains why both rifle are quintessentially within the scope of the right to arms. Judge Roger Benitez, striking down California’s “assault weapon” ban in Miller v. Bonta (2021) (and rejecting NSSF’s “sporty” term), wrote:

“[T]he popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. . . . AR-15 platform rifles are ideal for use in both the citizens’ militia and a state-organized militia. Quite apart from its practicality as a peacekeeping arm for home-defense, [it] can also be useful for war. In fact, it is an ideal firearm for militia service. . . . The evidence is clear . . . that the AR-15 . . . bears a reasonable relationship to the preservation and efficiency, as well as the effectiveness, of a modern well-regulated militia. It is therefore categorically protected by the Second Amendment.’

“The Second Amendment protects any law-abiding citizen’s right . . . to be armed to defend himself, his family, and his home. At the same time, the Second Amendment protects a citizen’s right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants.”

Furthermore, the Supreme Court has ruled four times (in U.S. v. Miller, Heller, and Bruen, noted above, and McDonald v. Chicago (2010)), that the right to arms is about individual and/or collective defense. No mention of “sports.”

Myths #6a and 6b: The Second Amendment guarantees the right of a person to bear arms only while serving in a militia, or the right of a state to have a militia.

In other words, not a purely private, individual right.

Even if you knew nothing else about the Second Amendment, there are several obvious clues that the Democrats’ theories about it cannot be correct. First, why do they have two theories? If one were correct, the other would have to be incorrect. The amendment cannot mean two things that contradict one another.

Second, militia members have no “right” to bear arms. Militias are military organizations, so their members bear arms because they are ordered to do so. Imagine Private Smith telling his commanding officer to issue him a gun because “it’s my right.”

Third, states don’t have “rights” either. Under the Constitution, they and the federal government have “powers.” For example, the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Fourth, the Democrats’ theories about whose right to “bear” arms the amendment guarantees ignore that the amendment also guarantees the right to “keep” arms, meaning “at home,” proving that it guarantees a private right.

Myth #7: In District of Columbia v. Heller, the Supreme Court invented an individual right to arms out of thin air.

Stated another way, Myth #7 is that before Heller, the Second Amendment was recognized to guarantee a “militiaman right” or a “state right” (see Myth #6, above).

The problem with that is that the Supreme Court recognized that the Second Amendment guarantees an individual right to arms in U.S. v. Cruikshank (1876), Presser v. Illinois (1886), and Miller v. Texas (1894), and the “militiaman” (“sophisticated collective right”) theory didn’t appear in court until 1905, in the Kansas Supreme Court’s decision in Salina v. Blaksley.

Then, in U.S. v. Miller (1939, see Myth #3, above), the government adopted Blaksley’s “militiaman” theory, but the Court ignored that and again recognized that the amendment guarantees an individual right.

The “state right” (“collective right”) theory didn’t appear until 1942, in the decision of the U.S. Court of Appeals for the Third Circuit in U.S. v. Tot. In Heller, not even the District or any of the four anti-gun justices on the Supreme Court adopted it.

For lots more on this point, see the Court’s opinion in Heller (noted above).

Myth #8: You don’t need an (AR-15, AK-47, Uzi, or whatever) to (hunt deer, go duck hunting, or whatever).

So said Bill Clinton in the 1990s and so says Joe Biden today.

Here’s what the Founding Fathers said.

James Madison, who introduced the Bill of Rights in the House of Representatives, wrote in The Federalist, No. 46: “Let a regular army . . . be formed; and let it be entirely at the devotion of the federal government . . . the State governments, with the people on their side, would be able to repel the danger. The highest number to which . . . a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls . . . . This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Alexander Hamilton, in The Federalist, No. 29: “If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”

Noah Webster: “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power.”

Tench Coxe: “As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms.”

Richard Henry Lee: “To preserve liberty it is essential that the whole body of people always possess arms.”

Elbridge Gerry: “What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty. . . Whenever Government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise a standing army upon its ruins.”

© Mark Overstreet 2022