How The Federal Government Nullified the Second Amendment to 'Ban' Automatic firearms

How The Federal Government Nullified the Second Amendment to 'Ban' Automatic firearms

There are two competing theories being debated today about American individuals’ “right” to gun ownership.

The original theory is that Americans enjoy a fundamental right to self-defense, in order to preserve one’s person and property against any neighbors or government agents who might act against one’s individual liberty.  This is a natural right that predates our government’s formation, and was therefore enshrined in the Constitution by some very forward-thinking liberals of their time.  In the words of the Second Amendment:

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.

It should not be difficult for anyone with a passing grasp of the English language to understand that it is the “right of the People” that is protected in that sentence, and it is clearly not the expression of a peculiar power owned by the newly-founded centralized government created by our Constitution.  Such straightforward, simple language in our Bill of Rights was actually suggested by Samuel Adams and John Hancock to accommodate the antifederalists at the Massachusetts Convention of 1788 and to avoid confusion about the new government’s limited powers, meant to guarantee that “the Constitution shall never be construed… to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

Adams thought far too much of future generations, clearly, because a second, competing theory has emerged within the last 100 years which suggests that gun ownership is not a right, but a privilege granted by the government, and the kinds of firearms allowed to peaceable citizens depends on what neighbors and government agents would deem allowable at any particular point in time.

The latter is entirely incoherent when contextualized with the words the Second Amendment, but that doesn’t matter, because it’s the position that is broadly recognized as truth for most Americans.  Today, it’s just natural to assume that the federal government has the right to curtail gun ownership of this gun or that one among “peaceable citizens” if the federal government feels that some guns are too dangerous for law-abiding citizens to own.

This is the progressives’ magic trick, and some Americans fall for it due to a simple deficiency in human nature.  For example, Chris Cuomo of CNN recently tweeted that “[t]here was no individual right” in the Second Amendment even “contemplated” until Antonin Scalia inferred the “individual right” in the Heller v. District of Columbia decision.

Winston Churchill once observed the reason why Chris Cuomo would say something so patently stupid, and why such stupidity might so commonly be believed by others.  Churchill said that, for human beings, “five years is a lot.  Twenty years is the horizon for most people.  Fifty years is antiquity.”

In the reality that existed long before Chris Cuomo’s nearly 50 years of life, however, was 146 years of American history between the ratification of the Second Amendment and America’s very first sweeping federal gun law.  In 1934, the National Firearms Act (NFA), was jammed into law by legislators.

The notion that the federal government could “ban” gun ownership was such an anathema to American sensibilities, and so clearly afoul of the Second Amendment’s intent as had been clearly understood up to that point, that the NFA could not be passed as an overt federal restriction upon individual ownership of firearms.  The law was constructed and upheld upon the federal government’s presumed ability to tax, not upon its ability to restrict ownership of firearms.

1941 ad for taxed-but-legal Thompson Submachine Guns (credit)

This was a roundabout infringement upon Second Amendment rights that is somehow still championed by conservatives looking to score sensibility points with the left, and aligning with Cuomo’s position.

“Machine guns were outlawed because there was no need that justified the risk.  Was that wrong, too?” Cuomo asks.

The short answer is, yes, that was wrong, too -- if the Second Amendment is the measure.  And to be clear, the Second Amendment is the only sentence in the Constitution where an individual right to firearms is addressed.

Yet we find several conservatives aligning with Cuomo, in principle, suggesting that automatic weapons, or “machine guns,” have understandably been banned since ancient times (for us), and it was somehow justified as within the government’s right to do so.  For example, Josh Hammer writes at the Daily Wire that, “automatic weapons are already (for all intents and purposes) banned” under the NFA, so new gun control measures on a “cosmetically amorphous” semi-automatic “assault weapons” should not be needed.

That statement not only concedes the left’s position that the federal government had the right to levy such infringements upon the individual right to gun ownership in the first place, but more importantly, it’s not entirely accurate.

I’ll assume that Hammer knows his history, and that by “all intents and purposes,” he means that the NFA made it nearly impossible for the common law-abiding citizen to attain an automatic weapon only because the cost was prohibitive for most common Americans due to the heavy tax laid upon the purchase of one.  It was egregious for the federal government to craft such a law, but perhaps the more important distinction is that there was no federal law suggesting that an American citizen couldn’t legally own a properly registered and purchased “machine gun” for more than 50 years after the NFA was passed, because it was clearly understood that a federal “ban” on such weapons was an infringement upon law-abiding citizens’ Second Amendment right.

In truth, automatic weapons were not actually “banned” in this country until 1986.

It wasn’t until the farcical passage of the Hughes Amendment as an addendum to the National Firearm Owners’ Protection Act (FOPA) of 1986 that ownership of any such firearm was truly “banned” by the federal government.

If you ever imagined that our elected betters are actively working toward the preservation of our constitutionally protected rights, watch this video of Charlie Rangel leading the House in a “voice vote” to allow the Hughes Amendment, and allowing only two minutes of raucous “deliberation.”  It is among the lowest and most ridiculous moments in the history of our American Congress -- and that’s saying something.

It has been reported that President Reagan considered vetoing the FOPA due to the inclusion of the Hughes Amendment, but was convinced by the NRA to not do so, believing that the “Supreme Court would throw that measure out as unconstitutional,” thereby “correcting the defect in new law.”  That challenge to the unlawful “machine gun ban” never came.  And now, thirty-three years later, nothing could be more natural than Americans assuming that the federal government somehow has the right to ban whatever weapons it can successfully ban, even if it does so via legislative subterfuge.

If the “slippery slope” idiom ever has a meaningful application, this might be a good example of it.

In the end, it took 146 years of American history for the government to even make a sweeping effort toward a federal gun law restricting firearms among the law-abiding populace.  It took sly maneuvering to enact the first federal gun control, achieved only under the auspices of the government’s “right to tax” firearms, and an ensuing fifty years of the government purposely avoiding the notion of that government could “ban” any firearm (for fear of running afoul of the Second Amendment), before a Congressional circus in 1986 finally presumed that the government could actually “ban” automatic weapons.

Yet today, Chris Cuomo can confidently suggest that the Second Amendment was never understood by Americans to protect an individual right to gun ownership?  History and logic could not be clearer in proving him either a fool or a liar.

I don’t know who’s worthy of more derision.  Chris Cuomo and his counterparts who are demanding that the federal government nullify the Second Amendment’s original purpose, or the cheering rabble who can’t bring themselves to investigate the easily understood lies that are being presented to them.

William Sullivan