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2nd Grader Suspended for Making ‘Gun Noises’ With a Pencil — After Pretending to Be a Marine Like His Dad
In the latest case of a youth being punished for what used to be considered innocuous child’s play, a second grader at Driver Elementary in Virginia has been suspended for two days for making gun noises while pointing a pencil.
The boy’s father explained: “When I asked him about it, he said, ‘Well I was being a Marine and the other guy was being a bad guy’…It’s as simple as that.”
A spokesperson for Suffolk Public Schools, Bethanne Bradshaw, explained: “A pencil is a weapon when it is pointed at someone in a threatening way and gun noises are made.”
“Some children would consider it threatening, who are scared about shootings in schools or shootings in the community,” she continued, adding that kids think more about school shootings these days ‘Cowboys and Indians.’”
But the boy’s father pointed out that his son is in good academic standing, has never been in trouble before and, according to the boy’s teacher, stopped pointing the pencil when asked. At some point, Paul Marshall argued, there needs to be “what used to be called common sense.”
“He’s just being a typical boy; you’re taking away his imagination,” he said. “Enough is enough. I mean where do you draw the line? You know — a pencil? Was it sharpened, was it not? Is it a No. 2? I mean, what’s the big deal?”
Sitting on a swing with a camouflage hat, the boy said: “I was playing. I’m sorry and stuff.”
The other student was suspended along with Christopher.
5-Year-Old Suspended, Labeled a ‘Terrorist Threat’ for Threatening to Shoot Friend With Toy Bubble Gun
The kindergartener was waiting for the bus at the time, and did not have the fake gun with her.
PennLive.com has all the unbelievable details:
Elementary school officials learned of the conversation and questioned the girls the next day, Fickler said. He said the girl did not have a parent present during the 30 minutes of questioning.
The result, he said, was that the student was labeled a “terrorist threat” and suspended for 10 days, Ficker said. The school also required her to be evaluated by a psychologist, [attorney Robin Ficker] said.
“This little girl is the least terroristic person in Pennsylvania,” he said. [Emphasis added]
The family’s attorney helped reduce the punishment from ten days to two, but the school is keeping the incident on the girl’s record. It has apparently been modified, however, to say she intended to harm another student.
Ficker told The Daily Item that school employees have become “hysterical” since the tragedy at Sandy Hook, and while we need to address genuine issues, there’s certainly a line to be drawn.
“You can’t make light of what happened to this girl either,” Ficker argued. “The incident goes on her permanent school record. She has been branded a troubled person. But she was suspended for her words. She had no gun. She had a bubble-making machine.”
The girl’s mother added: “All I know is what my daughter has told me and she said she was told she could go to jail, which is a very traumatic thing for a 5-year-old to live with.”
School officials said on Friday they weren’t at liberty to discuss disciplinary actions.
But one clever ebay user utilized the story in attempting to sell his son’s bubble gun, which he warned “may lead to the suspension of your kindergarten aged child.”
The question and answer section reads:
Q: Does the winning bidder have to submit to a background check? Does this item come with the standard 10 oz bottle of bubble ammo or am i limited to the New York 7oz bottles?
A: No background check required. This item will include 5 fluid oz of “bubble ammo” to pass any New York State regulations/laws.
Second Grader Playing ‘Rescue the World’ at Recess Suspended After Throwing Pretend Grenade at ‘Evil Forces’
It’s getting harder and harder to be a kid these days. Back in the day, children frequently played “cops and robbers” and other good vs. bad games at recess and around the house. Now they’re getting punished for it.
On the heels of three 6-year-olds being suspended for making gun signs with their hands during recess and a 5-year-old girl being suspended and labeled a “terrorist threat” for threatening to shoot her friend with a “Hello Kitty” bubble gun, a 7-year-old Colorado boy at Loveland’s Mary Blair Elementary School is reportedly in a similar position.
So what did he do? Apparently the 2nd grader was playing “rescue the world” at recess when he threw a pretend grenade at a make-believe box full of “evil forces.” There wasn’t actually anything in his hand, nor was there a real box.
“I was trying to save people and I just can’t believe I got dispended,” Alex Evans said. After demonstrating how the game is played, he said he threw fake grenade at the box “so nothing can get out and destroy the world.”
Fox 31 has more on the story:
But his imaginary play broke the school’s real rules. The school lists “absolutes” designed to keep a safe environment. The list includes absolutely no fighting, real or imaginary; no weapons, real or imaginary.
“Honestly I don’t think the rule is very realistic for kids this age,” says Alex’s mom Mandie Watkins.
Alex is like a lot of 2nd graders, perpetual motion. His mom says the little boy doesn’t understand why pretending to be a soldier was wrong. “I think that when a child is trying to save the world, I don’t think he should be punished for it.” [Emphasis added]
The mother adds that Alex will be staying home until they can get the issue resolved.
It should come as no surprise that President Obama told Ohio State students at graduation ceremonies last week that they should not question authority and they should reject the calls of those who do. He argued that “our brave, creative, unique experiment in self-rule” has been so successful that trusting the government is the same as trusting ourselves; hence, challenging the government is the same as challenging ourselves. And he blasted those who incessantly warn of government tyranny.
Yet, mistrust of government is as old as America itself. America was born out of mistrust of government. The revolution that was fought in the 1770s and 1780s was actually won in the minds of colonists in the mid-1760s when the British imposed the Stamp Act and used writs of assistance to enforce it. The Stamp Act required all persons in the colonies to have government-sold stamps on all documents in their possession, and writs of assistance permitted search warrants written by British troops in which they authorized themselves to enter private homes ostensibly to look for the stamps.
These two pieces of legislation were so unpopular here that Parliament actually rescinded the Stamp Act, and the king’s ministers reduced the use of soldier-written search warrants. But the searches for the stamps turned the tide of colonial opinion irreversibly against the king.
The same king also prosecuted his political adversaries in Great Britain and here for what he called “seditious libel” — basically, criticizing the government. Often that criticism spread and led to civil disobedience, so the British sought to punish it at its source. The prosecutions were so unpopular here, and so contrary to the spirit of what would become the Declaration of Independence, that when the British went home and the Framers wrote the Constitution and the Bill of Rights was added, the First Amendment assured that the new government could not punish speech.
Yet barely 10 years into “our brave, creative, unique experiment in self-rule,” in the infamous Alien and Sedition Acts, Congress at the instigation of President John Adams criminalized free speech that was critical of the new government.
How did it come about that members of the same generation — in some cases the very same human beings — that declared in the First Amendment that “Congress shall make no law … abridging the freedom of speech” in fact enacted laws that did just that?
As morally wrong, as violative of the natural law, as unconstitutional as these laws were, they were not historical incongruities. Thomas Jefferson — who opposed and condemned the acts (he was Adams’ vice president at the time) — warned that it is the nature of government over time to increase and of liberty to decrease. And that’s why we should not trust government. In the same era, James Madison himself agreed when he wrote, “All men having power should be distrusted to a certain degree.”
The Alien and Sedition Acts were but the beginning of a long train of government abuses visited upon people in America as a consequence of the “experiment in self-rule.” I am not quoting Obama’s Ohio State speech to nitpick, but rather to establish a base line for my argument that he rejects core principles and historical lessons and, most troubling, the natural law itself when he opines that government should be trusted because it has gained power via self-rule.
Self-rule alone is hardly a basis for governmental legitimacy, unless it is accompanied by fidelity to the natural law and to the rule of law. The rule of law here means fidelity to the Constitution, that all laws are just and apply to everyone, so no one is excused from obeying the laws and no one is excluded from their protections. Yet, self-rule here has been unjust and has brought us the tyranny of the majority. And that tyranny has brought us slavery, unjust wars, Jim Crow laws, domestic concentration camps in wartime, slaughter of babies in the womb, domestic spying without search warrants, torture and death by drones — just to name a few.
The reason Obama likes government and the reason it is “a dangerous fire,” as George Washington warned, and the reason I have been warning against government tyranny in my public work is all the same: The government rejects the natural law because it is an obstacle to its control over us. The natural law is divinely embedded in our souls. It is manifested by the universal yearning for freedom and justice. It consists of areas of human behavior — thought, expression, religion, self-defense, travel, acquisition and use of property, privacy, for example — in which our behavior is subject only to the exercise of our free will and not the permission of our neighbors or regulation by the government. The natural law, properly understood, is a restraint on the government.
Yet, government in America — whether it consists of Congress protecting the slave trade, or John Adams or Abraham Lincoln or Woodrow Wilson prosecuting political speech, or FDR incarcerating Japanese-Americans, or George W. Bush promising immunity for torturers and domestic warrantless spies, or Obama killing whomever he chooses with drones — has never hesitated to reject the natural law. All of these violations of the natural law were approved by the majority when undertaken. The government’s persistent and systematic rejection of the natural law is alone sufficient to mistrust government and reject Obama’s Ohio State advice.
The government that has come about by self-rule derives its powers from the consent of the governed. Because the tyranny of the majority can be as dangerous to freedom as the tyranny of a madman, all use of governmental power should be challenged and questioned. Government is essentially the negation of liberty. If we fail to challenge government at every turn, there will be no liberty remaining for us to defend when the government tries to negate it.
The State of Mississippi seceded from the Union on January 9, 1861. On May 4th, nearly the entire student body and many of the professors at the University of Mississippi formed ranks on the grounds in front of the Lyceum, left school and enlisted in the Confederate Army. Only four students reported for classes in fall 1861, so few that the university closed temporarily.
The Greys, as Company A of the 11th Mississippi and the Army of Northern Virginia, served in many of the most famous and bloody battles of the war. The most famous engagement of the University Greys was at Pickett’s Charge during the Battle of Gettysburg, when the Confederates made a desperate frontal assault on the Union entrenchments atop Cemetery Ridge. The Greys penetrated further into the Union position than any other unit, but at the terrible cost of sustaining 100% casualties—every soldier was either killed or wounded.
Historians agree that the Rebel charge by the boys from Mississippi was the high water mark of the Confederacy. During the height of the July 3rd cannonade preceding Pickett’s Charge, a stretcher was carried into a Confederate aid station somewhere behind the fighting. Surgeon LeGrand Wilson of the 42nd Mississippi, saw a head raised and recognized University of Mississippi student Jerry Gage. The following is the surgeon’s writing and J.S Gage’s letter home.
Although I have read this many time, it still tugs at my Ole Miss heart and brings tears to me eyes.
By Keith Hennessey at keithhennessey.com
The new George W. Bush Presidential Center is being dedicated this week. This seems like a good time to bust a longstanding myth about our former President, my former boss.
I teach a class at Stanford Business School titled “Financial Crises in the U.S. and Europe.” During one class session while explaining the events of September 2008, I kept referring to the efforts of the threesome of Hank Paulson, Ben Bernanke, and Tim Geithner, who were joined at the hip in dealing with firm-specific problems as they arose.
One of my students asked “How involved was President Bush with what was going on?” I smiled and responded, “What you really mean is, ‘Was President Bush smart enough to understand what was going on,’ right?”
The class went dead silent. Everyone knew that this was the true meaning of the question. Kudos to that student for asking the hard question and for framing it so politely. I had stripped away that decorum and exposed the raw nerve.
I looked hard at the 60 MBA students and said “President Bush is smarter than almost every one of you.”
I could tell they were waiting for me to break the tension, laugh, and admit I was joking.
I did not. A few shifted in their seats, then I launched into a longer answer. While it was a while ago, here is an amalgam of that answer and others I have given in similar contexts.
I am not kidding. You are quite an intelligent group. Don’t take it personally, but President Bush is smarter than almost every one of you. Were he a student here today, he would consistently get “HP” (High Pass) grades without having to work hard, and he’d get an “H” (High, the top grade) in any class where he wanted to put in the effort.
For more than six years it was my job to help educate President Bush about complex economic policy issues and to get decisions from him on impossibly hard policy choices. In meetings and in the briefing materials we gave him in advance we covered issues in far more depth than I have been discussing with you this quarter because we needed to do so for him to make decisions.
President Bush is extremely smart by any traditional standard. He’s highly analytical and was incredibly quick to be able to discern the core question he needed to answer. It was occasionally a little embarrassing when he would jump ahead of one of his Cabinet secretaries in a policy discussion and the advisor would struggle to catch up. He would sometimes force us to accelerate through policy presentations because he so quickly grasped what we were presenting.
I use words like briefing and presentation to describe our policy meetings with him, but those are inaccurate. Every meeting was a dialogue, and you had to be ready at all times to be grilled by him and to defend both your analysis and your recommendation. That was scary.
We treat Presidential speeches as if they are written by speechwriters, then handed to the President for delivery. If I could show you one experience from my time working for President Bush, it would be an editing session in the Oval with him and his speechwriters. You think that me cold-calling you is nerve-wracking? Try defending a sentence you inserted into a draft speech, with President Bush pouncing on the slightest weakness in your argument or your word choice.
In addition to his analytical speed, what most impressed me were his memory and his substantive breadth. We would sometimes have to brief him on an issue that we had last discussed with him weeks or even months before. He would remember small facts and arguments from the prior briefing and get impatient with us when we were rehashing things we had told him long ago.
And while my job involved juggling a lot of balls, I only had to worry about economic issues. In addition to all of those, at any given point in time he was making enormous decisions on Iraq and Afghanistan, on hunting al Qaeda and keeping America safe. He was making choices not just on taxes and spending and trade and energy and climate and health care and agriculture and Social Security and Medicare, but also on education and immigration, on crime and justice issues, on environmental policy and social policy and politics. Being able to handle such substantive breadth and depth, on such huge decisions, in parallel, requires not just enormous strength of character but tremendous intellectual power. President Bush has both.
On one particularly thorny policy issue on which his advisors had strong and deep disagreements, over the course of two weeks we (his senior advisors) held a series of three 90-minute meetings with the President. Shortly after the third meeting we asked for his OK to do a fourth. He said, “How about rather than doing another meeting on this, I instead tell you now what each person will say.” He then ran through half a dozen of his advisors by name and precisely detailed each one’s arguments and pointed out their flaws. (Needless to say there was no fourth meeting.)
Every prominent politician has a public caricature, one drawn initially by late-night comedy joke writers and shaped heavily by the press and one’s political opponents. The caricature of President Bush is that of a good ol’ boy from Texas who is principled and tough, but just not that bright.
That caricature was reinforced by several factors:
The press and his opponents highlighted President Bush’s occasional stumbles when giving a speech. President Obama’s similar verbal miscues are ignored. Ask yourself: if every public statement you made were recorded and all your verbal fumbles were tweeted, how smart would you sound? Do you ever use the wrong word or phrase, or just botch a sentence for no good reason? I know I do.
President Bush intentionally aimed his public image at average Americans rather than at Cambridge or Upper East Side elites. Mitt Romney’s campaign was predicated on “I am smart enough to fix a broken economy,” while George W. Bush’s campaigns stressed his values, character, and principles rather than boasting about his intellect. He never talked about graduating from Yale and Harvard Business School, and he liked to lower expectations by pretending he was just an average guy. Example: “My National Security Advisor Condi Rice is a Stanford professor, while I’m a C student. And look who’s President. <laughter>”
There is a bias in much of the mainstream press and commentariat that people from outside of NY-BOS-WAS-CHI-SEA-SF-LA are less intelligent, or at least well educated. Many public commenters harbor an anti-Texas (and anti-Southern, and anti-Midwestern) intellectual bias. They mistakenly treat John Kerry as smarter than George Bush because John Kerry talks like an Ivy League professor while George Bush talks like a Texan.
President Bush enjoys interacting with the men and women of our armed forces and with elite athletes. He loves to clear brush on his ranch. He loved interacting with the U.S. Olympic Team. He doesn’t windsurf off Nantucket, he rides a 100K mountain bike ride outside of Waco with wounded warriors. He is an intense, competitive athlete and a “guy’s guy.” His hobbies and habits reinforce a caricature of a [dumb] jock, in contrast to cultural sophisticates who enjoy antiquing and opera. This reinforces the other biases against him.
I assume that some who read this will react automatically with disbelief and sarcasm. They think they know that President Bush is unintelligent because, after all, everyone knows that. They will assume that I am wrong, or blinded by loyalty, or lying. They are certain that they are smarter than George Bush.
I ask you simply to consider the possibility that I’m right, that he is smarter than you.
If you can, find someone who has interacted directly with him outside the public spotlight. Ask that person about President Bush’s intellect. I am confident you will hear what I heard dozens of times from CEOs after they met with him: “Gosh, I had no idea he was that smart.”
At a minimum I hope you will test your own assumptions and thinking about our former President. I offer a few questions to help that process.
Upon what do you base your view of President Bush’s intellect? How much is it shaped by the conventional wisdom about him? How much by verbal miscues highlighted by the press?
Do you discount your estimate of his intellect because he’s from Texas or because of his accent? Because he’s an athlete and a ranch owner? Because he never advertises that he went to Yale and Harvard?
This is a hard one, for liberals only. Do you assume that he is unintelligent because he made policy choices with which you disagree? If so, your logic may be backwards. “I disagree with choice X that President Bush made. No intelligent person could conclude X, therefore President Bush is unintelligent.” Might it be possible that an intelligent, thoughtful conservative with different values and priorities than your own might have reached a different conclusion than you? Do you really think your policy views derive only from your intellect?
And finally, if you base your view of President Bush’s intellect on a public image and caricature shaped by late night comedians, op-ed writers, TV pundits, and Twitter, is that a smart thing for you to do?
The Department of Homeland Security is under investigation, by the Government Accountability Office, for purchasing large stockpiles of ammunition, days before legislation was introduced that would restrict the amount a government agency can legally buy. GAO spokesman Chuck Young told US News & World Report.
AP reports that the agency plans to buy more than 1.6 billion rounds of ammunition over the next four or five years, and has already bought 360,000 rounds of hollow point bullets and 1.5 billion rounds in 2012.
Hollow point bullets cost nearly twice as much as full metal jacket rounds and expand on impact for maximum damage, which has caused Americans to wonder what purpose they would serve the DHS domestically.
Purchasing 1.6 billion rounds of ammo would also give DHS the means to fight the equivalent of a 24-year Iraq War.
Members of Congress say the DHS has repeatedly denied stockpiling ammunition and repeatedly refused to tell them the purpose of procuring such large amounts of ammo.
“They have no answer for that question,” Congressman Timothy Huelscamp told Infowars in March, pointing out that the purchases are being made at a time when sequestration should be limiting the agency’s spending. “…We’re going to find out… I say we don’t fund them until we get an answer.”
Nick Nayak, chief procurement officer for the Department of Homeland Security, said the department, on average, buys roughly 100 million rounds per year.
However, DHS officials testified last week that it was planning to purchase 750 million rounds of ammunition for training centers and law enforcement over the next five years. The agency’s spokesman, Peter Boogaard, told Congress that a second five-year contract exists for 450 million rounds of ammunition. Together, the two DHS contracts for ammunition would result in purchases of up to 1.2 billion rounds of ammo.
DHS testimony did not provide an adequate explanation for the large amount of ammo it plans to procure, prompting a GAO investigation at approximately the same time as the introduction of the AMMO Act.
The new legislation, which was introduced in both the Senate and the House on Friday, would prevent government agencies from buying any more ammunition if its stockpiles are already larger than what they were in previous presidential administrations.
Proponents of the bill suspect that government agencies may be making large ammunition purchases to keep the supplies out of the hands of Americans at a time when the administration has been trying to eliminate the Second Amendment.
“President Obama has been adamant about curbing law-abiding Americans’ access and opportunities to exercise their Second Amendment rights,” US Sen. Jim Inhofe, who introduced the bill, said in a news release. “One way the Obama Administration is able to do this is by limiting what’s available in the market with federal agencies purchasing unnecessary stockpiles of ammunition… [DHS] has two years worth of ammo on hand and allots nearly 1,000 more rounds of ammunition for DHS officers than is used on average by our Army officers.”
Congressman Frank Lucas cited an ammunition shortage in Oklahoma and blamed the DHS for taking away Americans’ Second Amendment rights by removing ammo from the market.
“It is entirely … inexplicable why the Department of Homeland Security needs so much ammunition,” Chaffetz, R-Utah, said at a hearing.
Chaffetz, who chairs one of the House oversight subcommittees holding the hearing Thursday, revealed that the DHS currently has more than 260 million rounds in stock. He said the department bought more than 103 million rounds in 2012 and used 116 million that same year — among roughly 70,000 agents.
Comparing that with the small-arms purchases procured by the U.S. Army, he said the DHS is churning through between 1,300 and 1,600 rounds per officer, while the U.S. Army goes through roughly 350 rounds per soldier. He noted that is “roughly 1,000 rounds more per person.”
“Their officers use what seems to be an exorbitant amount of ammunition,” he said.
“This is not about conspiracy theories, this is about good government,” Rep. Jim Jordan, R-Ohio, said.
Rep. Darrell Issa, R-Calif., who chairs the full Oversight and Government Reform Committee, said he suspects rounds are being stockpiled, and then either “disposed of,” passed to non-federal agencies, or shot “indiscriminately.”
This article is part of a series on Guns in America that explores the use of firearms in our country and the debate over gun control.
Since the shootings in Newtown, Connecticut, one of the major responses has been to increase restrictions on gun rights, presumably to reduce the probability that a mass shooting will take place.
But what if their proposed methods for doing so are unconstitutional? That’s the argument advanced by some experts on constitutional law, who argue that the landmark cases of District of Columbia v. Heller and McDonald v. Chicago protect against the most controversial ideas being proposed, such as an assault weapons ban. Moreover, even some renowned liberal experts on the same law law admit that the tools available to the government are limited.
Key questions in the debate are: Can the government ban assault weapons without violating the Constitution? If so, why? To answer these questions, TheBlaze spoke to legal authorities on both sides of the ideological divide, including some truly famous names within the realm of constitutional law. What we found may surprise you.
I. Background: Heller, McDonald and the Limits of the Second Amendment
When it comes to the regulation of gun rights, two Supreme Court cases stand out as definitive: The 2008 case District of Columbia v. Heller, and the 2010 case McDonald v. Chicago. Both cases conclusively established that the individual right to keep and bear arms is protected by the Constitution, and that this right is in force whether one is talking about state-level gun law or federal gun law.
One might think this is the end of almost every gun law. After all, if there’s a constitutional right involved, the assumption is that the government can’t do anything to infringe on that right, right? Wrong. Every constitutional right has exceptions, or place where a right doesn’t apply. For instance, the Supreme Court has found exceptions to the First Amendment to include things like fighting words, obscenity and words that present a “clear and present danger” (such as yelling “fire” in a crowded theater when no fire exists). That is, the government can regulate, and even ban, such exercises of “speech” without running afoul of the First Amendment.
Similarly, both Heller and McDonald set limits on the right to keep and bear arms, even as they affirm that that right exists. TheBlaze has covered some of those limits already, but for now, it’s enough to quote from U.S. Supreme Court Justice Antonin Scalia’s majority opinion in Heller, which sets up the current controversy:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. 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.
Some of this might strike the reader as obvious. However, there is one point of vagueness, which is where most of the controversy in the current climate comes in. Scalia writes that “dangerous and unusual weapons” are not protected by the Second Amendment. This raises a very simple question: What counts as “dangerous and unusual?” In fact, what counts as “dangerous”? What counts as “unusual?” If a weapon is only dangerous, but not unusual, or only unusual, but not dangerous, is it protected by the Second Amendment? The answers to these questions aren’t obvious, and they have real, non-academic implications for the government’s power.
II. Can the government ban assault weapons?
The original Heller case involved a ban on handguns in the District of Columbia, which the court struck down. The reasoning, in its briefest form, was as follows:
The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.[...]
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
In other words, the problem with the ban on handguns was simple: Handguns are a class of weapons that are commonly used. This would seem to suggest that the reference to “dangerous and unusual weapons” really should have emphasized the “unusual” part, given that all weapons are (relatively) dangerous.
On these grounds, at least one expert would toss out assault weapons bans entirely. That expert, Randy Barnett of Georgetown Law Center, explained his reasoning to the Blaze via phone:
“When you get down to specifics, I think some of the easier cases for finding unconstitutionality is the assault weapons ban, which bans a weapon in common use, which is the phrase that Heller used to describe the weapons that are protected by the Second Amendment,” Barnett told The Blaze. “There’s hardly a weapon that’s in more common use than the AR-15 so-called assault weapon. I say so-called, because we all know this is a made-up category. They don’t fire any faster than a constitutionally protected handgun fires, and it’s typically less lethal than a handgun.”
Barnett continued, “Because these weapons are in common use, it seems like it would be unconstitutional to ban them, especially given the irrationality of the statute in which cosmetic features are used to distinguish the bad guns from the good guns.”
However, Barnett’s opinion is not held by everyone. Laurence Tribe, of Harvard Law School, declined to comment directly on this story, but forwarded The Blaze an unedited version of his own testimony before Congress on this topic via email. Tribe takes a much more generous view of the question of assault weapons bans.
“Heller recognized that dangerous or unusual weapons may be and have historically been heavily regulated or banned,” Tribe’s testimony runs. “It is not inconceivable – indeed, it seems quite likely – that the court‘s pause to distinguish unusually dangerous weapons from widely possessed handguns had precisely the 1994 Assault Weapons Ban, which included a prohibition on high-capacity magazines, in mind. At the very least, the Heller majority recognized that the government could keep machine guns —M-16 rifles and the like—out of the hands of civilians. The Supreme Court thus emphatically rejected the extravagant, or as Justice Scalia characterized it, startling notion, still promoted by some, that the Second Amendment could fulfill its original purposes only if citizens were guaranteed a right to arm themselves to the teeth, matching in their private armories essentially the full array of weapons possessed by the United States Military.”
Even if the characterization of these features as cosmetic were accurate, it would make little difference as a constitutional matter. In a recent televised interview, Justice Scalia explained the basis in history for exempting certain types of regulations from Second Amendment review. Certain limitations on gun ownership are constitutionally permissible, he contended, because there were some regulations that were acknowledged at the time [of the Founding. For example, there was a tort called affrighting . . . if you carried around a really horrible weapon just to scare people, like a head ax or something. . . . What the justice evidently meant was that regulating weapons because they are chosen specifically for their intimidating appearance is constitutionally unproblematic because the very use of intimidation is unnecessarily disruptive to organized society.
Even more important to the constitutionality of the assault weapons ban is the absence of any connection to the core Second Amendment right to defend oneself with a firearm. At this committee‘s hearing on January 30, several witnesses criticized the assault weapons ban on policy grounds, but in my role as a constitutional lawyer listening intently for arguments relevant to the proposal‘s Second Amendment propriety, I was struck by the failure of anyone‘s testimony to support these features as essential to self-defense. In fact, I have searched in vain for any reasoned arguments that pistol grips, forward grips, telescoping stocks, grenade or rocket launchers, and barrel shrouds are indispensable or even contribute to self-defense.
Interestingly, in the same testimony, Tribe does not dispute Barnett's characterization of the AR-15 magazine-fed semiautomatic rifle as a common weapon. In fact, he describes it as "America‘s most popular rifle." Nevertheless, for Tribe, the relevant point is not the fact that the weapon is common, but rather that it is unusually dangerous, an idea that Barnett disputes, arguing that handguns actually fire more damaging rounds than the AR-15.
Another interesting difference between the more liberal line taken by Tribe and the more conservative one taken by Barnett is in their perception of lower court decisions since Heller and McDonald were handed down. Tribe cites a recent decision by the DC Circuit Court of Appeals upholding Washington, DC's assault weapons to prove his points, whereas Barnett takes a much dimmer view of such cases.
"Many of the lower courts are engaged in what you might call civil disobedience against Heller and McDonald," Barnett told The Blaze. "I would not rely on courts to protect the Second Amendment. The courts did not protect the right to keep and bear arms until 2006, and yet nevertheless we had such a right, and that right we had as a result of political action."
However, there is a compromise position between these two arguments, advanced by none other than Robert Levy of the Cato Institute, who was actually one of the co-counsels in favor of gun rights in the Heller case itself. In an interview this January, Levy told the Washington Post:
We had an assault weapons ban from 1994 to 2004. The New York Times, after the ban expired, reported that despite dire predictions that the streets would be awash in military-style guns, expiration of the assault weapons ban has not set off a sustained surge in sales or caused any noticeable increase in gun crime. There are, of course, millions of these so-called assault weapons, and they’re used by millions of Americans for all sorts of things, including hunting, self-defense, target shooting, even the Olympics. Criminals use handguns because assault weapons are expensive and they’re difficult to conceal.
Now, [the Supreme Court] said that the Second Amendment would likely pose no barrier to outlawing weapons that are not in common use and are especially dangerous. And we have proof of that because fully automated weapons, like machine guns, have been essentially banned since 1934.
I don’t consider myself an expert on the technical features of firearms, and so I’m not prepared to say exactly which weapons would go on the list and which shouldn’t, but I think experts should be able to come up with a pretty good list — obviously not needed for self-defense, obviously dangerous, not in common use. And that would be the new assault weapons ban.
In other words, Levy argues, the idea of creating a category of uncommonly used weapons that are less dangerous than fully automatic weapons, but still dangerous relative to handguns, and banning that category of weapons from civilian use, is not unconstitutional. Whether that aim has been achieved in the current case is an issue that probably only courts can answer.