Saturday, February 16, 2013

Heller, the Second, DHS and the gun ban

The AR15 is a rifle that has been singled out by the gun control advocate as signifying all that is wrong with gun ownership. Yet, one person’s ugly, menacing, and unsuitable for this or that, is another’s functional, practical, effective and just plain fun. No one ever said the AR is pretty, but it is an effective and useful tool.

Janet Napolitano’s Department of Homeland Security (DHS) has made the point of the argument by those who own AR15s, as to the purpose of the rifle. The argument has been made by the gun control advocates that the alleged assault rifle that is the focus of the ban proposals is not a personal defense weapon, but a weapon of war. DHS’s Request for Bid (RFP) for 7,000 "Personal Defense Weapons" (PDW) for close quarters battle (CQB) demonstrates the hypocrisy and absurdity of the government’s position on military style rifles.

The rifles sought by DHS are the ubiquitous AR15 at the heart of the ‘gun ban’ proposed by President Obama and Senator Feinstein, with one major difference. The rifles in the DHS Request for Proposal (RFP) are also select fire, meaning that like the military issue M4, they will have a full auto and/or 3 round burst and a single shot capability. Other than that one feature, the PDW requested by DHS will be indistinguishable from the AR15 in common use.

The interesting aspect of the DHS RFP is the fact that DHS is specifying select fire weapons, when a few years ago, DEA purchased semi-automatic AR15s. Why has the government decided to upgrade the federal police agencies to provide a firearm equal to the military M4 carbine? Do we want federal police agencies, which are civilian police agencies carrying full auto weapons? Especially, given the increasing number of innocents wounded or killed by police officers?

Those companies responding to the DHS RFP are undoubtedly those same companies that now produce the AR15 in its hundreds of varied configurations. The same companies demonized by the gun control groups and our liberal politicians.

The AR15 has become America’s most popular rifle for a reason. It is simply a good weapon for sport shooting and self protection/self defense. Estimates of the number in private possession in the U.S. are as high as 3,750,000. The self defense use is obviously an attribute recognized by the DHS and civil police agencies that is in agreement with the use by the law abiding civilian. That it is used in so few crimes so as to be statistically irrelevant is another fact that argues against any ban.

Popular three gun shooting competitions are a test of skill using the AR15, semi-auto pistol and 12 gauge riot gun. Women also compete in these contests. The AR is simply fun to shoot.

The civilian AR15 is incapable of being modified to fire in other than a single shot (one round per trigger pull) mode due to changes in the sear design to prevent a full auto capability from being enabled by simply dropping in a military M4 or M16 sear. Therefore, the AR15 is a true personal defense weapon and sporting arm, and not a military ‘assault’ rifle, as claimed by the gun control lobby.

The civilian AR15 is a single shot, semi-automatic, gas operated, magazine fed military style rifle. Semi-automatic means that the gases expelled by the powder burning in the cartridge are used to automatically actuate the bolt of the rifle to extract and expel the empty cartridge case and to move the bolt back to compress a recoil spring in the butt stock that then moves the bolt forward to engage and push the next cartridge from the magazine into the rifle’s chamber and acts to cock the rifle. Military style rifle means that the AR15 outwardly shares many of the same attributes of the military M16 rifle or M4 carbine. The major difference is in the fire control limitations built into the AR15. However, the AR15 can use military issue 30 round magazines, and the same 5.56mmX45mm ammunition issued by the military for the M16/M4. Some versions are configured as rifles capable of firing the larger 7.62mmX51mm .30 cal (.308 caliber) military ammo. The USCG uses a variant that is chambered for .50 cal Beowulf for CQB for boarding suspected drug smuggling vessels.

The impact of this rifle upon the firearms industry and the American shooting public has been incredible. Literally millions of Americans enjoy ‘tricking out’ their AR15 rifle. The hundreds of modifications that can be made in terms of sights, optics, rails, hand guards, stocks, grips, slings, match triggers, weapons lights, flash hiders, muzzle breaks, barrel lengths, magazine types, and different caliber configurations are varied and wide ranging. This adaptability to fit the desire of the shooter allows the rifle to be personalized according to the taste and needs of the owner. Thousands of Americans are in business or employed in those businesses that support the AR15 in all of its various configurations.

The war drives much of the innovation, because most of the accessories were developed as a result of the combat experience and needs of our troops. American innovation and applied technology have made the AR15 the most flexible and adaptable weapon in modern firearms history.

The desire to eliminate the AR15 and high capacity magazines for both the AR15 and semi-auto pistols may be a goal of President Obama and the gun lobby. Effecting such a ban on either the type of firearm or the magazine capacity may be a problematic.

Heller held that ". . . United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

2. Like most rights, the Second Amendment right is not unlimited. . . . Miller’s holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

In its December, 2012 ruling, the 7th Circuit Court of Appeals ruled that Illinois ban on concealed carry was unconstitutional. The court further reinforced Heller by finding that one’s Second Amendment right extended to carry beyond the home:

"We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense."

How any reasonable or prudent individual could conceive the AR15 or any semi-auto hand gun "unusual" or not in "common" use is simply unimaginable and incomprehensible, given the proliferation of these types of firearms throughout the civilian, security, police, and military sectors. What is in "common" use are the same weapons issued to civil police and used for the same purpose as the civilian uses them: personal defense and self protection. The AR15 used by civilians and civil police are very similar in terms of configuration and equipment are very similar to the M16/M4 of the military.

All weapons qualify as dangerous, whether a knife, sledge hammer, or firearm. That aspect of the argument is simply without merit.

The AR15 is in "common" organized militia use today with the various 32 USC §109(c) State Defense Forces (SDF) of the various States. The SDF volunteer soldier is required to provide one’s own weapons, ammunition, gear, uniforms and to also bear the cost of training to the benefit of the State. The SDF is paid only when called to State Active Duty. The SDF is the State only component of the organized militia. The Alaska State Defense Force is authorized under AS 26.05.100, its purpose under AS 26.05.070.

The unorganized militia comprises those who do not belong to either the National Guard or the State Defense Force of their State. The unorganized militia member also has an obligation to maintain a military grade arm suitable for militia use, such as the AR15. The member of the unorganized militia, like the SDF volunteer, is expected to provide their own arms, ammunition, and gear, when called up to serve by their governor. Under Alaska statutes, that authority rests with the governor under AS 26.05.110, with the militias defined under AS 26.05.010. All states have similar statutes denoting the organized and organized militias and the authority of the governor to call them up for State Active Duty.

The usual militia use is for the individual to have an AR15 or similar type of military style rifle of good quality in 5.56mmX45mm or 7.62mmX51mm with enough military compatible magazines to allow up to a 200 round individual soldier ammunition load out, depending upon caliber. The ability of the AR15 to utilize standard military issue magazines (30 round for 5.56mm ammo) is extremely important with respect to the ability of the organized and unorganized militia to use military stores in a major natural or man made catastrophe.

The State Defense Forces would be charged by the governor of their respective state to support the National Guard and to aid in restoration of order and to provide security. A call up of part or all of the unorganized militia may be necessary to supplement the NG and SDF forces. Therefore, commonality of the militia weapon with military issue rifles and carbines as to ammunition, magazines, operator controls and sighting procedures are extremely desirable and important to the effectiveness and usefulness of the militia during a time of duress. The AR15 unquestionably meets these criterion.

The "common use" finding in Heller renders irrelevant the President’s and Senator Feinstein’s arguments regarding the capacity of magazines. The so called "high capacity" magazine is in lawful common use by the civilian, military and police user. Therefore, any argument of the magazines being ‘unusual’ is moot.

The arguments of gun control advocates against the AR15 and firearms ownership in general are based not in substance, but founded in emotion and "I think"–opinion. The facts of "common use" should carry more weight in the discussion than how the AR15 impacts esthetically and the emotions imparted upon viewing it. And, those aspects speak to the mental condition of the viewer, and does not reflect negatively upon the rifle.

It is incredible that the law abiding would be penalized, because of an emotional response to an inanimate object, tens of thousands of which are in common use daily. This would be similar to outlawing sharp kitchen knives by the length of blade. Or, attributing an accident involving fatalities to an SUV, rather than the driver of the SUV. More crimes have been committed by criminals or the mentally unbalanced using knives than using rifles.

FBI crime statistics for 2011 show 356 crimes committed using rifles, and 1,659 using knives or other sharp instruments. This is a far more compelling case for the banning of knives than is made for the banning of a particular type of rifle.

The Second Amendment states:

"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."

The argument of the liberal gun control advocates that the Framers never anticipated firearms like the AR15 is specious and without merit. The Framers used the term "Arms" to denote that the people’s arms were to be as capable and comparable to those used by the military of the time and into the future. In using ‘arms’ rather than stating ‘musket’, for example, the Framers anticipated the continual evolution of weapons’ technology for the common soldier, and, thereby, for the people. It is incredible to believe, as is asserted by gun control advocates, that our personal weapons are not to be as contemporary, as capable and state of the art as those used by the military, given the citizen’s duty as part of the organized or unorganized militia. The AR15 and the semi-automatic hand gun are simply the current iteration of an ongoing, evolutionary individual weapons development process.

Whether intentional or not, the genius of the Framers of the Constitution and Bill of Rights in using the term "Arms" is indisputable in their allowing for that ongoing evolution of weaponry so that our Second Amendment rights would never be obsolete.

President Obama and Senator Feinstein are wasting the peoples’ time and money with the red herring of their proposed gun ban and magazine bans. The "common use" stated in Heller defeats the premise of their actions.

The AR15 is not "unusual". It is in common use by the millions by private citizens, security and civil police, all for the same purpose: self defense, and sport shooting. Even DHS recognized this common use in their RFP.

For more information:

Second Amendment to the Constitution of the United States:

"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."

Constitution of the State of Alaska:

Article 1 §19:

"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. The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.

Alaska Statutes:

AS 26.05.010

AS 26.05.070

AS 26.05.100

AS 26.05.110

D.C. v. Heller, 478 F3d 370

SCOTUS Heller decision from Cornell University Law School:

Moore v. Madigan, 7th Circuit Court of Appeals:

Estimates on the number of AR15 rifles in private ownership

Human Events:

FBI Unified Crime Report 2011:

FBI crime report tables, note: click on the table number to see the table you are interested in viewing.

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