Orlando: The Best Tool for the Job

Steve Russell

Two comments about legal tools before we get to hardware.

First, the Second Amendment to the U.S. Constitution does not apply to tribal governments on tribal land and those governments are free to enact any limitations on guns or none.

I was born and raised in Indian country and still spend lots of time there and so I know firearms abuse is not a problem of the size it is in the dominant culture, the need for firearms is greater, and attitudes toward firearms are typical of rural areas where guns are considered only marginally more dangerous than chainsaws. Just another tool.

Second, the U.S. government is not coming for your AR-15 and the reason it can’t is not the Second Amendment. It is the Fifth Amendment guarantee that your property cannot be taken from you without compensation. Unless you use it in a crime, if the government wants your assault rifle then the government must buy it from you. That is not doable.

The U.S. had an assault weapons ban between 1994 and 2004. That experiment showed a minimal impact on the homicide rate and anybody who studied homicide would predict that. Assault weapons are very seldom used in homicides. But in those few cases where they are used, the effect is extraordinary.

An assault rifle would be the weapon of choice when assaulting an aggressive and well-armed deer herd. Or a dance floor.

An assault rifle is a nifty toy, and it awakens some nostalgia in those of us who had the loan of one from the government. The Sig Sauer MCX employed recently in Orlando has even more sex appeal than the M-16 I got from Uncle Sam. The MCX comes with a folding stock that also detaches easily, such that you could smuggle a long gun anywhere you could smuggle a pistol.

The Sig Sauer kicks less than an AR-15 and it's very quiet for the firepower. I have not fired it myself but I know the brand and it appears to me a very efficient tool for its intended use, offering high quality at a reasonable price.

What's not to like, unless you are the hunted rather than the hunter? There's only one kind of game it makes sense to hunt with an assault rifle.

The late Justice Antonin Scalia went out of his way in the very case that recognized the Second Amendment individual right, District of Columbia v. Heller, to point out that the individual right theory of the Second Amendment would not invalidate a ban on “M-16 rifles and the like.” (Fair disclosure: as a teacher of criminal law and a member of the SCOTUS Bar, I signed an amicus brief in Heller supporting the individual right theory.)

It is a fair reading of the law that the sale of assault weapons is not at this time a constitutional issue. It's a policy issue.

Here's how the policy issue weighs out, in my opinion.

There’s no denying that an assault rifle is a nifty toy, and some people might have fun shooting paper targets, although I'm not sure you need a silencer and a folding stock to have that kind of fun.

An assault rifle could be used for hunting but it does not make a lot of sense for that purpose, but where is it written everybody has to choose what's efficient?

That's two reasons to sell assault rifles to all comers.

Here are a few reasons not to:

Stanley Almodovar III, 23
Amanda Alvear, 25
Oscar A Aracena-Montero, 26
Rodolfo Ayala-Ayala, 33
Antonio Davon Brown, 29
Darryl Roman Burt II, 29
Angel L. Candelario-Padro, 28
Juan Chevez-Martinez, 25
Luis Daniel Conde, 39
Cory James Connell, 21
Tevin Eugene Crosby, 25
Deonka Deidra Drayton, 32
Simon Adrian Carrillo Fernandez, 31
Leroy Valentin Fernandez, 25
Mercedez Marisol Flores, 26
Peter O. Gonzalez-Cruz, 22
Juan Ramon Guerrero, 22
Paul Terrell Henry, 41
Frank Hernandez, 27
Miguel Angel Honorato, 30
Javier Jorge-Reyes, 40
Jason Benjamin Josaphat, 19
Eddie Jamoldroy Justice, 30
Anthony Luis Laureanodisla, 25
Christopher Andrew Leinonen, 32
Alejandro Barrios Martinez, 21
Brenda Lee Marquez McCool, 49
Gilberto Ramon Silva Menendez, 25
Kimberly Morris, 37
Akyra Monet Murray, 18
Luis Omar Ocasio-Capo, 20
Geraldo A. Ortiz-Jimenez, 25
Eric Ivan Ortiz-Rivera, 36
Joel Rayon Paniagua, 32
Jean Carlos Mendez Perez, 35
Enrique L. Rios, Jr., 25
Jean C. Nives Rodriguez, 27
Xavier Emmanuel Serrano Rosado, 35
Christopher Joseph Sanfeliz, 24
Yilmary Rodriguez Solivan, 24
Edward Sotomayor Jr., 34
Shane Evan Tomlinson, 33
Martin Benitez Torres, 33
Jonathan Antonio Camuy Vega, 24
Juan P. Rivera Velazquez, 37
Luis S. Vielma, 22
Franky Jimmy Dejesus Velazquez, 50
Luis Daniel Wilson-Leon, 37
Jerald Arthur Wright, 31

Since assault weapons only have one purpose, you'd best not try to tell Sig Sauer "guns don't kill people." That would be an insult to the product.

To claim that all those homicides could have been done without a specialized tool is a claim that assault weapons serve no function.

If you had to silence a machine gun nest, you "could" do it with a trench knife and it in fact has been done with a trench knife. So why spend money on hand grenades?

You could kill 50 and wound 50 with a single shot, bolt action .22. You could do it with your bare hands.

It's possible.

So why ever buy an assault weapon, if it does nothing that can't be done in another way?

A soldier needs an assault rifle for the same reason a restaurant needs an electric can opener. You only need the latter in your home if you are handicapped. So tell me again why you need the former in your home?

Expecting a multiple party home invasion?

All the WWI troops have walked on now, but they would have described a fairly common tool you could buy at most hardware stores as a "trench broom." Usually employed in .12 gauge with a buckshot load.

There are two bonuses in having a trench broom for home defense. First, you need no serious amount of practice to use it effectively. Second, after you repel the zombie apocalypse you have an effective tool to get yourself a duck for dinner.

In the U.S. since 2006, motor vehicle deaths have been dropping fairly steeply while firearm deaths have been rising. The last year of data from the Violence Policy Center, 2014, found that firearm deaths exceed motor vehicle deaths in 21 states and the District of Columbia. Several of those states where guns kill more people than cars have significant Indigenous communities: Alaska, Arizona, Colorado, Idaho, Michigan, Nevada, Oregon, Utah, and Washington.

Motor vehicles are subject to much more pervasive regulation than guns, which is odd because your car is much more necessary than your gun. Law abiding and sensible drivers have to comply with the same rules as lawless and reckless drivers.

In the U.S., public policy is that you are not allowed to self-medicate with antibiotics because the misconduct of others might result in the development of “superbugs” that antibiotics can’t kill.

The abuse of assault weapons by some people is as certain as the abuse of antibiotics and automobiles by some people. In the case of antibiotics, we inconvenience the law abiding and sensible to avoid dire consequences. In the case of cars, we inconvenience the law abiding and sensible to save some lives and catch the perpetrators when lives are lost and to require insurance to pay for harm done.

In the case of assault rifles, we do not choose to inconvenience law abiding and sensible people who enjoy their toys to obstruct mass killings. The National Rifle Association, which when I was a member represented gun owners but for a long time has switched to gun makers, claims that taking the MCX off the market today leads to taking your duck gun off the market tomorrow. I did not notice duck guns being confiscated between 1994 and 2004.

The hue and cry about the government coming for guns happens every election and the purpose is not just to tilt the election results. It is to sell guns. The NRA opposes registering guns like cars, so it’s hard to be certain, but most scholars believe the market is saturated.

As is the case with cars, the numbers of guns per owner are on the rise. Each confiscation scare spikes sales, mostly to existing gun owners. If you are on the NRA mailing list, you have seen the regular predictions.

The need for assault weapons assumes a need to assault something. Hunters don’t speak in terms of assaulting game and competitive shooters don’t assault targets. Neither game nor targets are known to shoot back, so the sexy features of assault rifles are for nothing but pleasures of the imagination. Until the pleasures migrate from imagination to reality.

When that happens, the tool proves its value, its sole value, its advertised value. It’s a value that—once removed from the realm of imagination—gives pleasure to active duty soldiers and the criminals who call themselves active duty soldiers but sane people call terrorists.

Enabling terrorists for profit is (at least) stupidity. The NRA is entitled to sell stupidity. Congress is not entitled to buy it.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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T. Muns's picture
Judge Russell, Although I agree with much you have said in this article, I would pose a question though. But first, a quote from the 2nd 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." You argue that assault rifles are unnecessary, and although I agree in principle, I still ask the following. "When the Second Amendment was put in to the Bill of Rights, did the founding fathers foresee a time when U.S. citizens would have to rise up as citizens of a free state and form militias to combat a tyrannical government? I am curious what your answer would be on this. Certainly, the founding fathers had seen a change in firearms and could only imagine what was yet to come. Was this amendment written so that the technological advances could be owned by the private citizen as well? Another note, I have not seen anything in the 2nd Amendment about hunting. Did I miss it?
T. Muns
swrussel's picture
I completely agree with your remark about hunting and I do not understand how it got imported into a Second Amendment discussion, but it is there even at the SCOTUS level. I indulge it because I come from a hunting culture and hunting is simply not anything remarkable to me as a criminal justice scholar. My big beef on that front is poachers, but real hunters hate poachers like any sportsman hates a cheater. The insurrection theory of the Second Amendment, on the other hand, is preposterous. The Constitution never contemplated such and that is not the way the Founders governed, starting with the Whiskey Rebellion. The Founders contemplated regulation of the militia by the states, but that has about as much force in our time as the sole authority of Congress to declare war. (And as long as we speak of gaps between theory and practice, notice that the bogus "plenary power" over Indian nations is supposed to belong to Congress. Look back since it was created by the SCOTUS and note how it was exercised.) Congress has the authority to require every adult in the militia age bracket to purchase an assault rifle, but it has not done so. It could specify which assault rifle, but it has not done so. Should a state decide to make such orders, it would make a hilarious litigation watching the original intent frauds produce their smoke and mirrors but the state would certainly lose if the feds objected. The SCOTUS has pretty well disconnected the right to keep and bear from the statement of purpose and they might as well. In disasters, we use the National Guard. The last time we had battles on US soil could be argued as the War of 1812 or the first battle of the Mexican War in the disputed strip between the Rio Nueces and the Rio Bravo...but, whichever, we are not going to need the militia to repel an invasion and so it's a vestigal organ even without the Civil War (which is a whole other reason why the insurrection theory of the Second Amendment is silly).