Lies the government told you

by Andrew P. Napolitano

  But one must ask, safer for whom? Safer for the criminals who rob, assault, and rape, all the while knowing that the probability of their victim being armed is slim and thus they do not have to fear a fight that they cannot win? Safer for a tyrant who fears an armed citizenry? Safer as opposed to freer? If things continue this way, liberty’s tombstone will read, “This was for your own good.”2

  If constitutional guarantees are dependent upon the goodwill or benign intentions or untyrannical nature of future governments, while presently allowing the “good” government slowly to abridge our Second Amendment rights, then the Constitution becomes nothing more than a piece of paper, defenseless and easily destructible.3 And we can listen to those who deride even the mention of the tyrannical and disastrous results of other national disarmaments, claiming, “Not in America” as they roll their eyes.

  If the road to hell is paved with good intentions, then the road to tyranny is paved by believing the government. Even if it had the best of such intentions, the government’s infringement of the people’s right to defend themselves, their homes, their families, and most importantly their liberties, is an asphalt truck paving such a road at an ever-increasing rate.

  Shortly after the repeal of Prohibition, the progressives in the federal government decided that we were in need of gun control legislation, and Congress passed the National Firearms Act of 1934. Since Congress recognized that it did not have the authority to regulate guns, it snuck what was in essence the first gun control law through the back door, claiming it as a revenue-raising measure under the taxing power of Congress.

  Surprisingly, Congress recognized that it could not ban guns outright, so instead it overtaxed them. This is the reason why until recently the Bureau of Alcohol, Tobacco, and Firearms was under the authority of the Treasury Department. The 1934 Act regulated and taxed the transfer of certain types of firearms and required the registration of such arms4 and was to be enforced by the Treasury agents who were looking for work due to the happy end of Prohibition. Looking for work, or looking for targets?

  Justification for enactment of the legislation centered around the gang wars during Prohibition and especially the Valentine’s Day Massacre in Chicago in 1929, when Al Capone had seven of George “Bugs” Moran’s men executed with machine guns. The argument, though moot considering that Prohibition was at an end, claimed that if assault weapons had been regulated, then the violence of Prohibition would not have occurred. The gang violence that had proliferated as a result of Prohibition became the perfect excuse for the federal government, but also another of its lies, considering that gang violence slowed to a crawl once Prohibition was repealed. Did anyone actually believe that mobsters, who stole, maimed, and killed on a daily basis, would hand over their guns because the federal government said they should? Even more egregiously, the 1934 Act regulated other weapons, like short-barreled rifles, which were not associated with any gang activity. But, as usual, once the government was able to gain an inch, it decided to take a mile.

  Disarming the Poor

  The core of the National Firearms Act was the price people were expected to pay. In order to register a shotgun, payment of a $200 tax was required, an exorbitant amount when considering that it is equal to $3,056.11 at today’s values.5 It is even more excessive when one considers that, according to the Sears catalog in 1938, a brand-new shotgun could be purchased for $6.95. So why would anyone in his right mind pay a tax of $200 for a $7.00 gun? It is government theft to place a tax on an item that is greater than the value of the item itself, but even more incredible when the tax is twenty-eight times the value of the item. The equivalent theft today would be a tax that forced us to pay $200 to the federal government for a paperback novel or a cheeseburger.

  Even more shocking is that the Supreme Court upheld the Act, holding that the $200 tax was a constitutionally valid exercise of the taxing power of Congress. The Court refused to look beyond the face of the Act, which was cited as a revenue raiser, not a prohibitory measure, to condemn it as a regulation of matters beyond the power of Congress.6

  Stranger still, just a few years earlier, in the Child Labor Tax Cases, the Court held that imposing a 10 percent tax on the net profits of employers who employed child laborers was “an act of Congress which clearly, on its face, is designed to penalize and thereby to discourage or suppress, conduct . . . cannot be sustained under the federal taxing power by calling the penalty a tax.”7 Was that not the exact intention of the Firearms Act, to regulate and prohibit certain firearms? If charging 10 percent of earnings is considered penalizing, then what else but a penalty is a tax that is more than twenty-eight times the value of the taxed item? The Court apparently did not see this incongruence, noting that the Act did not expressly state the intention to prohibit certain firearms.

  And so the government learned that as long as it lied convincingly about its intentions, no matter how unbelievable its claims, and couched the lies in constitutional verbiage, the Court would sanction its actions. And thus began the era of lies and deceit by the government in order to diminish slowly but surely that right the Founding Fathers saw as so fundamental, the right to self-defense.

  Supreme Mistake

  On the afternoon of June 22nd 1938, Frank Layton and Jack Miller were driving through Arkansas when Treasury agents stopped them. The agents, somewhat bored without booze smugglers to hunt, were hoping to make a bootlegging bust, but encountered a problem when they realized that Miller’s truck contained no illicit bootlegging equipment. Fortunately for the agents, all was not in vain, as the two men were in possession of an unregistered sawed-off shotgun, prohibited under the new laws. So, though no violent or criminal acts had been committed by the men, who were carrying Miller’s beat-up shotgun for protection as they traveled through lonely back roads, they were summarily arrested.

  Unbeknownst to them—and to the joy of the agents—the shotgun was required to be registered under the new “revenue-raising” National Firearms Act. The two men therefore faced substantial fines and up to five years in jail, all for driving across a state border without an extra two inches of steel. They faced a long prison sentence for carrying a gun that was slightly too short. Of course, even if they had known about the legislation, it is doubtful that Miller and Layton would have registered their weapon, as the price of registration, as we have seen, was astronomical.

  The implications of this case and the National Firearms Act on the Second Amendment were not lost on the federal district judge presiding over the criminal case against Miller and Layton in United States v. Miller. Dismissing all charges, the judge noted that charging a $200 tax on a $6.95 firearm was so expensive that it was in effect a direct infringement on the Second Amendment right to keep and bear arms. Miller and Layton were freed and continued with their lives, content in the knowledge that their fundamental rights were protected by the courts.

  Unfortunately, the federal government was not willing to accept this condemnation of its convoluted legislation and appealed to the United States Supreme Court. When the case reached the Supreme Court, Miller and Layton were not available, while their counsel, having represented them for free, could not spare the expense of further litigation. The result was that neither briefs nor oral arguments were presented on their behalf. This was in itself a shocking result as it is unheard-of for the Supreme Court to hear and consider only one side of a case. But hear it and consider it the Court did.

  Undisputed, uncontested, and undeterred, the government was able to argue that firearms with a barrel shorter than sixteen inches were not used in the military, that the Second Amendment only granted protection to arms that were used by the militia, and that the militia could only be armed with weapons used by the military. The government remembered its earlier lesson well, and knew that as long as it lied and lied well, the Court could be seduced. And that is exactly what occurred. The Supreme Court of the United States did not investigate the truth of the statements and accepted each false claim by the
government with no scrutiny.8

  Justice McReynolds simply stated that “certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Of course it was not within judicial notice; how could it have been, when the only people providing information to the Court were lawyers for the federal government? Typically, in order to have a fact be taken into judicial notice, it must be so notoriously well-known that it is almost irrefutable. Yet here, the Court chose to turn the rule on its head, and accept something as fact because no other evidence had been brought to the Court to refute it. The Supreme Court in essence chose to ignore basic rules of evidence and accept an assertion to be fact with no evidentiary presentation and only the contention of the government. And unfortunately, there was no one to object or complain.

  With little fanfare, the Supreme Court held that since there was “no evidence tending to show the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Neither providing a historical analysis of the right to bear arms nor acknowledging that a militia historically consisted of a citizenry armed with their own guns rather than those of the military, the Court upheld the constitutionality of the National Firearms Act of 1934. Sadly, the Court’s flawed and convoluted reasoning was the precedent that would govern Second Amendment jurisprudence and legislation for almost seventy years.9

  A Rose by Any Other Name

  Would Not Smell as Sweet

  The reign of United States v. Miller allowed both the state and federal governments to infringe continuously upon the fundamental right of the people to keep and bear arms. In 1968 came the Gun Control Act and the Omnibus Crime Control and Safe Streets Act, which prohibited firearm ownership by certain individuals, including those under eighteen years of age, and most importantly prohibited the private sales of guns between the residents of different states, as well as establishing a national gun licensing system. Of course, the Acts were aptly named, the government having incorporated the most beneficent of motives in the title. Who would not want the streets of their neighborhoods to be safer?

  The Acts also created the “sporting use” test, which required that any imported firearms “be generally recognized as particularly suitable for or readily adaptable to sporting purposes, excluding surplus military firearms.” The subjectivity of such a test permitted the government to choose what was sport and resulted in a ban on firearms used for popular gun sports not recognized by the law enforcement agencies. Eerily enough, large portions of the Gun Control Act were almost identical to those of the Control Acts of Nazi Germany, which resulted in the disarming of an entire population of Jews.10

  The Gun Control Act of 1968 spawned a variety of similar state regulations, which resulted in an increasing frequency of rebellious grumblings from those who believed that Second Amendment rights guaranteed to the people were being trampled. As a result, the United States Senate Committee on the Judiciary formed a Subcommittee on the Constitution, which was to examine the rights granted by the Second Amendment.11 The committee at the time consisted of some very familiar names, including Orrin Hatch, Bob Dole, Ted Kennedy, and Arlen Specter, as well as the current vice president, Joe Biden. In February 1982, after extensive historical research and hearings, the subcommittee issued its report, and stated that

  the conclusion is thus inescapable that the history, concept and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half of the century after its ratification, indicates that what is protected is an individual right of a private citizen to own or carry firearms in a peaceful manner. [emphases added]

  Partially as a result of the remarkable findings of the subcommittee, Congress enacted and President Reagan signed into law the Firearm Owner’s Protection Act of 1986, which was billed as an attempt to return back to the people their Second Amendment rights. But of course, as in the past, the claim made by the title of the Act was a falsity. Instead of protecting personal rights, the Act banned the manufacture, transfer, and civilian use of machine guns not manufactured as of the date of the Act; except, of course, for law enforcement officials. The justification was once again that this was for the prevention of violent crime. Even Ronald Reagan, who claimed he believed in the original meaning of the Second Amendment as articulated by the Senate Judiciary Committee’s Subcommittee on the Constitution, fell for this.

  Of the 175,000 licensed automatic firearms in existence at the time, none had been used to commit a violent crime.12 Considering this information, maybe Reagan should have thought to name the Act more appropriately, rather than being complicit in pulling the wool over the eyes of the people and assaulting their Second Amendment rights.

  Federal regulations became more frequent, including an Executive Order by President George H. W. Bush banning the importation of machine guns. Then the Brady Handgun Violence Prevention Act followed five years later, creating a national background check system and requiring a waiting period before a gun could be purchased. Though the Act mandates that all paperwork received by the BATF be automatically destroyed, quite often the BATF will find excuses to keep the records on file for extended periods.13 Of course, this was another well-crafted title by the government, continuing the deception that its actions were all for our own good, even though no evidence was ever found to illustrate the effectiveness of gun control on violence prevention. Maybe a name like “Make It So Difficult to Get a Gun That No One Does” Act would have been more truthful.

  Finally, the federal government gave us the Violent Crime Control Act of 1994, which it actually subtitled with some truth as the Federal Assault Weapons Ban. In essence, this Act was a prohibition on the sale to civilians of specified semiautomatic firearms, which were defined as “assault weapons.” The Act designated nineteen weapons by name as assault weapons and then provided a definition of assault weapons that was based on certain combinations of a senseless variety of features.

  Especially interesting to note is the fact that while the term “assault weapon” sounds threatening and brings to mind rapid-fire machine guns, in reality “the weapons outlawed by the ban function the same as any semiautomatic and legal hunting rifle. They fire the same bullets at the same speed and produce the same damage. They are simply regular deer rifles that look on the outside like AK-47s.”14 These guns do not fire multiple rounds; only one bullet is ejected each time the trigger is pulled.

  The federal government chose to ban weapons on appearance rather than utility and all under its ever-popular guise of crime control. When the ban was set to expire in 2004, there was a hue and cry by politicians that its expiration would facilitate a bloodbath in the streets. Thankfully, the Act was not extended, and, not surprisingly, nothing happened. The lifting of the ban was heralded by no increase in crime. Rather, a study on the assault weapon ban by the federal government’s own Centers for Disease Control and Prevention was unable to find sufficient evidence to illustrate the effectiveness of the ban on violence prevention.

  Six months after the ban ended, the FBI reported a 3.6 percent drop in violent crime, the first in five years. And those states that continued to have assault weapons bans actually saw the lowest drops in murder rates.15 Of course, the public is never made aware of these statistics, and the government still claims that we were safer with the ban.

  The reason the government continues to get away with these lies and deceptions is the absurd willingness of the people to believe that by disarming the general public and law-abiding persons, we will also effectively disarm criminals. Rational thought dictates the opposite effect: By disarming law-abiding persons, the government effectively gives criminals more firepower for their crimes. Yet a study that c
ross-referenced the FBI uniform crime report with concealed weapons laws in every state found a very high correlation between laws banning concealed weapons and high crime rates. But it was a different correlation than the government expected, because rather than having lower crime in those areas where gun control was most stringent, there was the opposite effect: The states with the most lawfully concealed weapons had the lowest rates of crime.16

  Vermont is the state most famous for its permissive gun carry laws, and it has one of the lowest crime rates in the Union. Compare the District of Columbia, with the highest gun murder rate, at almost 57 out of 100,000 persons to a city across the river, Arlington, Virginia. Arlington has much more permissive guns law, but its gun murder rate is 1.6 per every 100,000 persons. One could argue that this is due to a different city landscape, but if it does not prove that access to guns lowers crime, it at least illustrates that gun control does not help lessen crime and violence. And if it cannot do that, then what is its use? Might it have something to do with the lust of those in power to dominate us?

  Fewer than 2 percent of handguns and 1 percent of all guns in this country will ever be used to commit a violent crime, so the all-encompassing gun laws aimed at the entire population, when only a small subset of it is involved in crime, is like burning a haystack to get at a needle.17 On the other hand, it is law-abiding citizens who are often successful in warding off crime, and studies have shown that assailants armed with guns will typically flee when their victim draws a weapon.18

  Guns are used defensively more than two million times per year, which means that more armed citizens successfully defend themselves and reduce criminal activity each year.19 Benjamin Franklin once stated that democracy is two wolves and one lamb voting on what to have for dinner, while liberty is a well-armed lamb contesting that vote. Slowly but surely, the lambs are being disarmed while the wolves continue to sharpen their teeth.20