This column by ACRU Senior Legal Analyst Ken Klukowski was published February 16, 2013 on Breitbart.com.
Missouri Democrats are trying to join New York, California, and Illinois as states that oppose gun rights guaranteed by the U.S. Constitution. National talk-radio host Lars Larson–who is not a lawyer–understands the relevant provisions of the Constitution better than many lawyers I know.
One television personality referred to the proposed Missouri ban as going after assault weapons and guns with assault-weapon features. That’s half-right: there is no such thing as an assault weapon; it’s not a class of firearms. It’s a made-up term by anti-gun politicians to scare ordinary Americans into thinking there is some evil type of firearms that must be banned.
They are not machine guns, which have been practically illegal since 1934. Nor are they assault rifles, because not all assault rifles show up on assault-weapon lists proposed by politicians, and the list always includes many firearms that are not any type of rifle.
The Missouri proposal would largely go after certain types of rifles. The fact is that 70% of gun crimes are committed with handguns. They are much easier to carry and conceal than rifles. If banning guns was the way to stop violence, then going after handguns would be the way to go.
Larson evidently knows his history when it comes to guns. As discussed in my book, Resurgent: How Constitutional Conservatism Can Save America, the American Revolution started on Apr. 19, 1775, when British Lt. Gen. Thomas Gage tried to confiscate the colonists’ firearms at an armory in Concord, Massachusetts.
During that operation the Shot Heard Round the World was fired on Lexington Green, and a war began that, one year later, resulted in the Declaration of Independence and the birth of a new nation called the United States of America.
Lars also raised the issue about government being able to regulate certain constitutional rights when it comes to the time, place, and manner in which those rights are exercised. That’s correct when it comes to the First Amendment. For free speech, restrictions on the content of speech are subject to what is called “strict scrutiny.”
Without getting into the weeds of the legal test involved, suffice it to say that very few content restrictions satisfy this test; most are struck down as unconstitutional. But regulating the timing, places, or manner (such as using a megaphone) of speech only incidentally burdens the right of free speech. As such, these restrictions are subject to “intermediate scrutiny,” which is a much less demanding test.
Courts are starting to grapple with the question of how these standards also apply to the Second Amendment. If we have good judges on the bench who are faithful in interpreting this right in accordance with its purposes, we should be able to flesh out the law on guns in a way that gives full effect to the original meaning and scope of this critical provision of our Supreme Law.
Lars was also right when he responded to those who said Bill Clinton’s assault weapons ban (supported by potential 2016 presidential candidate Hillary Clinton) would have been effective if assault weapons were confiscated. Studies show that the ban’s ineffectiveness was not because people stocked up on these weapons and so there were plenty available; it’s instead that criminals just switched to using other types of firearms that were not banned.
They’re criminals. If you don’t let them get Gun #1 to commit a crime, they’ll use Gun #2. If you ban all guns, they’ll use knives, or baseball bats, or bricks. That’s what we’ve seen in countries like Great Britain that have effectively banned gun ownership.
Larson asked on-air whether the government must pay you when it confiscates your property. The answer is yes, and then some. It does not violate your rights to forbid you from buying some sort of property (if it doesn’t violate some other right; the government can’t forbid you from buying a Bible or a newspaper, for example). Nor does it violate your rights if it passes certain restrictions on using your property.
But the Takings Clause of the Fifth Amendment to the Constitution provides that if the government takes your property, it’s unconstitutional unless the government both (1) gives you “just compensation”–meaning the market value of your property, and (2) that property is for a “public use.” Government uses this power of eminent domain to take land for building things like roads or post offices.
But even if Missouri officials gave citizens money for their guns, they’re still not putting them to a public use, rendering this taking unconstitutional. Although this measure isn’t going to become law, as a lawyer, part of me wishes it would so I could participate in a case where the federal courts would strike down this law and slam the anti-gun politicians behind it.
So good job to Lars Larson. If enough of his colleagues in the media put the same amount of time into understanding the Constitution, we might inform enough American citizens to bring sanity to this discussion, and show Barack Obama’s gun-control agenda to be the big-government power grab that it is, one that has no chance of actually reducing violence.