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by
John Rosenberg

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January 3, 2013 - 12:34 am

Yale law professor Akhil Reed Amar has powerfully argued that the “unenumerated rights” protected by the Ninth and Fourteenth Amendments provide stronger support for the individual right to bear arms than even the Second. In “Putting the Second Amendment Second,” for example, Amar explains:

In identifying these unenumerated “rights retained by the people,” the key is that a judge should not decide what he or she personally thinks would be a proper set of rights. Instead, the judge should ask which rights have been recognized by the American people themselves—for example, in state constitutions and state bills of rights and civil rights laws. Americans have also established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected. Many of our most basic rights are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low.

In “America’s Lived Constitution,” summarizing chapter three of his recent America’s Unwritten Constitution, Amar writes:

[Although unenumerated rights] are by definition not expressly listed in the terse text, the written Constitution signals their existence and provides broad guidance about where and how to find these rights. One of the most obvious places where these rights are to be discovered is in the lived practices and beliefs of the American people themselves. Another source of these “lived” rights is where Americans live: their homes.

Although lawyers can argue about where permitted regulation ends and impermissible prohibition begins, semi-automatic rifles, shotguns, and pistols are “simply facts of life” in America, and banning them would indeed be challenging. One need think only of the lack of success of an earlier experiment with Prohibition (“a miserable failure on all counts”) — whose contraband after all was consumed and so not stockpiled — to begin to see both the practical and constitutional challenges of separating millions of Americans from their even more millions of semi-automatics.

One final, dispiriting point. I mentioned that I was prompted to look into the Australia example after a Christmas conversation with a gun control-supporting friend. Since he is unusually well-informed about a wide range of subjects (far more than I) — as evidenced by the fact that he had read both about Australia and was familiar with the Akhil Amar argument discussed above — I was initially surprised that he believed that “assault” rifles were more powerful and could fire much faster than ordinary rifles in wide circulation.

“Initially,” because I then remembered that my friend gets nearly all of his information from the mainstream media and NPR. Two post-Sandy Hook articles from the New York Times illustrate the pitfalls of relying on such sources.

A December 17 article by reporter Erica Goode, for example, uncritically quotes Tom Diaz, a senior policy analyst at the anti-gun Violence Policy Center, claiming that the AR-15 used by Adam Lanza in his murderous killing spree in Connecticut and in the recent mass shootings at a Colorado movie theater and shopping mall in Oregon “are made and designed for war.”

They are not. They are made for civilians. The military versions are capable of automatic fire; the civilian versions are not. They fire no faster than any other semi-automatic, and they are and have been for a while designed to prevent conversion to automatic fire. As a professional anti-gun wonk, Diaz probably knows that the versions available to the public are not “designed for war,” but he probably, or at least reasonably, suspects that New York Times reporters and readers won’t.

Ms. Goode does acknowledge that “defenders of the firearm … argue that unlike the AR-15’s military counterparts, the civilian models are almost all semi-automatic, not fully automatic, and so should not be classified as assault rifles.” This distinction, however, is a fact, not simply a matter of interpretation that defenders and critics can reasonably “argue.” Moreover, her statement that civilian models “are almost all semi-automatic” is misleadingly imprecise. Fully automatic weapons have been illegal since 1934 and there are virtually none on the streets today.

In the same misleadingly even-handed way, Ms. Goode notes that:

Critics describe them as high-power weapons — in addition to firing multiple rounds quickly, they have a higher muzzle velocity than traditional rifles. But defenders say that most AR-15s are chambered for .223 or 5.56 ammunition, low-caliber rounds that are less deadly than those used in many handguns.

The semi-automatic weapons at issue are, of course, high-power weapons capable of firing many rounds quickly, but then so are all semi-automatic rifles. Again, however, it is a fact, not a matter for interpretation or argument, that a .223 round fired from a so-called “assault rifle” has no higher velocity than a .223 round fired from any of the many non-”assault rifles” that chamber that round. The velocity of the .223 is indeed higher than most heavier rounds, but that doesn’t make it more powerful because it also has a smaller bullet.

Another article that appeared in the Times on the same day, by N.R. Kleinfield, is guilty of the same inaccuracies and distortions, noting for starters that Adam Lanza’s Bushmaster AR-15 is “a military-style assault weapon.” As we’ve seen, it isn’t — unless by “military style” Kleinfield is referring only to superficial cosmetics like a pistol grip and folding stock.

The Times editors are no better informed than its reporters. A Dec. 29 editorial repeated the mantra about the “military-style assault rifle” used by Adam Lanza noted, again inaccurately, that such rifles put ”military firepower” into the hands of civilians and “bristle with features useful only to an infantry soldier or a special forces operative” such as “quick-change magazines [that] let troop reload easily.” Detachable magazines that let shooters reload easily are, of course, featured on all semi-automatic rifles and pistols, not just ones sporting a “military-style” appearance, and no rifles for sale to the public have “military firepower” because they lack the military’s automatic fire capability.

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