President Clinton suffered a stinging, embarrassing rebuke two weeks ago when 58 Democrats joined all but 11 Republicans and blocked release of the crime bill from committee to the floor of the House for a vote. One of its more controversial provisions, of course, is the ban on assault weapons. But the president and the Democratic leadership regrouped, offering compromise on "pork" and in other areas, but retaining the assault weapon ban significantly unchanged. Although many of the House Republicans and many of the 64 Democrats who voted against the bill did so largely because of the assault weapon ban, as Rep. Jack Brooks noted during Sunday's floor debate, "the people who hate guns are in the majority now."
While many Republicans worked hard to kill the assault weapon ban, few dared say so out loud and publicly confined their announced opposition to the bill to the excessive "pork" hidden in the guise of dubious social programs. This is a shame, for there are important reasons, moreover, that have nothing to do with guns or whether the ban will "work."
Supporters of the assault weapon ban have put forth essentially two reasons why these "weapons of war" should be prohibited. First, as Mr. Clinton has stated, they should be banned because they are the "weapons of choice of drug traffickers, gang members and paramilitary extremist groups."
Now, let's assume that the president is right, that assault weapons are indeed beloved by violent criminals, and that their rapid fire and large ammunition capacities make them eminently suitable for the evil designs of drug lords, gang members, lunatics and extremists. We still have one question. Are the rights and liberties that the law permits to the law-abiding dictated or determined by the choices and behavior of the lawless?
The essence of the "weapon of choice" argument is that, because criminals and madmen use these guns to commit crimes, the law- abiding must give them up. But to ban guns because criminals use them is to tell the innocent and law-abiding that their rights and liberties depend not on their own conduct, but on the conduct of the guilty and the lawless, and that the law will permit them to have only such rights and liberties as the lawless will allow.
By criminalizing an act that is not wrong in itself the purchase and sale of a firearm the ban violates the presumption of innocence, the principle that insures that government honors the liberty of its citizens until their deeds convict them. By completely banning the sale of assault weapons to prevent crime before it occurs, the law effectively and irrebuttably presumes that all who want such a weapon are no better than murderers or madmen, forever ineligible to acquire these firearms.
Obviously, a law which restricts the liberty of the innocent because of the behavior of the guilty, that rests on principle that the conduct of criminals dictates the scope of liberty the law will allow to the rest of society, in no sense "fights" crime. It is, instead, a capitulation to crime, born of a society in full-bore retreat from crime, a society fearful of and desperately accommodating itself to crime.
A society that was, instead, outraged over crime, would boldly direct its energies against criminals, angrily resolved to surrender no ground, forfeit no liberties to the lawless. For society does not control crime, ever, by forcing the law-abiding to accommodate themselves to the expected behavior of the law- abiding.
The "weapon of choice" justification of the ban is illegitimate, because it is unjust for the law to deprive the innocent of their liberty because of the behavior of the guilty. But supporters of the assault weapon ban have another, more powerful argument for why these weapons should be banned. Unlike the "weapon of choice" justification, this other argument does not depend on the fact that violent criminals like guns.
The second argument asserts that assault weapons should be banned because they are "weapons of war, whose sole purpose is to kill people." No one, not even the law-abiding, has any legitimate reason to own a weapon that can fire so many rounds so quickly, suitable only for military purposes.
Recent legal and historical scholarship, such as Joyce Malcolm's new book, "To Keep and Bear Arms: The Origins of an Anglo-American Right" (Harvard University Press), is quite clear that the purpose of the Second Amendment was precisely to ensure that individuals had the right to keep and bear firearms suitable to militia use, for our nation was founded upon the belief that a citizen militia was "necessary to the security of a free state."
The Second Amendment is a dead letter, however, in at least two of our branches of government. So let's set that aside. What's interesting about the "weapons of war" justification is, no one actually believes it.
Whatever sinister capabilities assault weapons have as compared to other firearms, whatever dark purpose spawned their creation, neither Congress, gun-control proponents nor the public claim that their ownership or use should be denied to the police or federal law enforcement agencies. Yet the nation's law enforcement officers are not warriors, hit men or death squads licensed to kill. Like law-abiding citizens, they may only use lethal force justifiably, in defense of themselves or others, or face the sanctions of criminal law.
How is it, then, that "assault weapons" magically transform into "counter-assault weapons" when handled by the police? And how do they revert to "deadly assault weapons" when handled by everyone else?
The fact that people believe that law enforcement may use these weapons demonstrates, of course, that people understand that the weapons have obvious and legitimate utility for defense of home, community and nation. This one fact shows that the guns are not evil of themselves, and do not whisper to their owners, taunting them to shoot children playing at recess or innocent bystanders in drive-by shootings.
This one fact shows that people understand that the responsible use of firearms depends foremost on the purpose and character of the person who wields the weapon. And because we know these things, this discrepancy between how we view police holds the key to understanding what the assault weapon ban is really about.
A civilian who wants a weapon that looks and acts like a "weapon of war" is suspect. We fear his motives, his purity of heart. We do not fear the motives of the police or federal agents, because they are instituted and commissioned to protect us and our community. We do not fear "assault weapons" in the hands of the police because their mission is, as put by the Los Angeles Police Department's motto, "to protect and serve."
The support for the assault weapon ban thus reveals an awful truth: Our representatives, our president, and a sizable majority of Americans no longer believe or presume that their friends and neighbors the many, common, unknown people who make up their communities act out of good and noble desire to defend themselves, their families and their communities from violent crime or civil disorder.
They will not trust their fellow, gun-owning Americans to act responsibly with firearms, because they do not perceive their fellow Americans to be harnessed or dedicated to the common good. No republic is founded or long stands upon such a foundation of distrust of fellow citizens.
Polls show that about 70 percent of the American people support the assault weapon ban. This astonishing degree of support exists despite the fact that the L.A. riots demonstrated vividly and unassailably that a semiautomatic with large ammunition and rapid reload capacity is precisely the weapon a lone or small group of shopkeepers (and, by extension, a homeowner) needs to face down an angry mob.
It exists despite the fact that civilian firearms played a key role in maintaining law and order in southern Florida in the aftermath of Hurricane Andrew, when police and social services were disrupted and overwhelmed by the magnitude of the natural disaster.
The support exists despite the fact that ATF and FBI behavior at Waco should have taught us all to stop confusing the firearms proficiency and "professionalism" of law enforcement with sound and moral judgment. Yet the responsible use of firearms depends precisely on sound and moral judgment, and no republic is founded or stands upon the notion that the government possesses and exercises moral judgment superior to that of the people.
The facts prove powerless to derail the assault weapon ban because law reflects, at bottom, our collective disavowal of any serious responsibility to protect ourselves or our communities from violent crime or civil disorder, and our belief that this responsibility, and the force necessary to execute that responsibility, lies exclusively in the domain of the state.
The common criticism that assault weapons have "no legitimate sporting purpose" thus expresses perfectly the view, now shared by more than two-thirds of our countrymen, that the American people are not fit for, or to be trusted or burdened with, such weighty concerns or responsibilities as defense of home, community or country.
No, we wish to confine ourselves to, and are fit only for, our diversions, "bread and circuses." It is the responsibility of our more trustworthy servants in the government to take care of us, and we will do our part by complaining about their performance until they start doing a good job.
The assault weapon ban represents neither criminological nor moral progress, but irresponsibility, and lack of that faith and trust in our fellow man that is, at bottom, what we mean by community. The ban is wrong not only because it deprives the innocent of their liberty, but because it is a vote of no confidence in the character of people.
While the great majority of Americans evidently no longer trust themselves or one another to behave responsibly with firearms intended for serious purposes, Congress errs if it abandons those who still recognize that self-government and the commitment to duty, honor and country require that each be prepared against the day when he must take up his arms, fully suitable to the purpose then at hand, and fight and risk life in defense of family, community or nation.
Failing that, all who support the ban should know this: When the president finally signs into law a bill that includes an assault weapon ban, those who opposed that ban because of what the Founding Fathers intended for us, because of what we once were and what we should be, will know that their government regards them as criminals and that their countrymen renounce liberty at each turn for any promise of safety.
Jeff Snyder is an author and a lawyer who works in Washington.