Continental Rift

posted on January 23, 2019

Some of the theaters are predictable. It seems astonishing that New Jersey and California are still dreaming up new ways to limit the Second Amendment—and remarkable, too, that the courts have largely remained silent about their encroachments. Yet they most decidedly are dreaming up new ways to limit the Second Amendment.

In New Jersey, Democrat Gov. Phil Murphy has conceded that it is impossible to address violence “through the passage of a single, magic law,” so he has promised the passage of multiple magic laws instead. Having recently outlawed magazines that can hold more than 15 rounds, New Jersey has now gone one step further under Murphy and prohibited magazines that can hold between 11 and 15 rounds. Worse still, it has provided no “grandfather clause” for existing owners. As of Dec. 10, 2018, any resident of the state who has such a device in his possession is liable to be convicted of a crime—even if he bought it legally prior to the ban, and even if his record is spotless. Per Evan Nappen, a lawyer who specializes in New Jersey firearm law, the state has rendered possession a “crime of the fourth degree with a maximum jail time of 18 months and a maximum fine of $10,000.” There’s a word for that: Confiscation.

Just over one in six Americans live in California and New Jersey, and it seems that, for the foreseeable future, they will be at the mercy of politicians who believe that the Bill of Rights is optional.

Alas, that is likely to be just the start of it. In recent months, Murphy has announced his desire to sign laws requiring that citizens provide photo id before they may purchase ammunition; to mandate that all ammunition sales be logged by the state police; to impose considerably higher fees on the purchase of firearms and the acquisition of already-tough-to-get possession permits; and to force all gun dealers to stock so-called “smart guns,” irrespective of whether the technology works or whether there is any demand. Gov. Chris Christie was no great friend to gun owners, but even he considered these ideas absurd. Alas, Gov. Murphy is no Gov. Christie.

In California, the situation might be even worse than it is in New Jersey. The state’s incoming Democrat governor, Gavin Newsom, makes Jerry Brown look like Charlton Heston. During his eight-year tenure, Brown frequently vetoed anti-gun bills that he considered had gone too far—and, in so doing, served as the sole check on extremism within the entire California state government. Newsom, by contrast, seems never to have met a gun control proposal that he dislikes, which—given that anti-Second Amendment politicians within the state Legislature now have complete free rein, and given that the 9th Circuit Court of Appeals has a poor record of upholding the right to keep and bear arms—is a serious problem for the state’s 40 million residents.

Just over one in six Americans live in California and New Jersey, and it seems that, for the foreseeable future, they will be at the mercy of politicians who believe that the Bill of Rights is optional—or, at least, whose copy of the Constitution is woefully incomplete. Americans watching from other jurisdictions should feel fortunate to have been spared their compatriots’ unlovely fate. But they should also keep at least one eye open, for the New Jersey Model and the California Model are both evidently intended for export. Murphy has said that under his leadership, “New Jersey will be a national role model,” while Newsom has vowed that California will serve as a “national model” for gun control. And so the empire rolls on.

Where do Murphy and Newsom hope to export their ideas? Frankly, it might be easier to ask where they don’t intend to export their ideas. It is certainly true that, post-2018, the initial targets will be the “purple” states in which pro-Second Amendment politicians lost some ground. In Nevada, the new governor intends to implement a background check law that the previous administration had concluded was “unenforceable.” In Colorado, the Legislature hopes to take up a “red flag” provision that would allow the state to confiscate firearms from those it considers unsuitable. And in Washington state, where residents just passed a draconian initiative that imposed heavy restrictions on the purchase of firearms, the Alliance for Gun Responsibility has unveiled an ambitious agenda that includes, among other things, a ban on commonly owned magazines; an end to the state preemption rules that ensure that state laws are respected in all counties; and the imposition of government-mandated training courses for anyone who wishes to obtain a carry permit.

But the threats on the horizon are by no means limited to states that have elected anti-Second Amendment majorities—or even to states in which the legislature is precariously balanced. In New Mexico, the state Senate intends to take up so-called “universal” background checks once again, despite that measure having roundly failed in 2017. In Montana, the Missoula City Council continues its efforts to limit the places in which Montanans can legally carry their arms. And, perhaps most alarmingly of all, the gun control movement is attempting a Hail Mary pass in, of all states, Florida—a pass that, if completed, would prove cataclysmic to the right to keep and bear arms in what is now the third most populous state in America.

Florida provides us with a good case study of the ways in which gun haters will go wherever the field is open. As a rule, the Florida Legislature is still dominated by politicians who remain opposed to further infringements of the Second Amendment. Moreover, the state’s new Republican governor, Ron DeSantis, ran as an unapologetic opponent of gun control during his winning 2018 campaign, and, if anything, is more likely to propose removing regulations than to propose adding them. In consequence, the chances of legislative or administrative changes being made over the next four years seem rather slim.

That, however, has done little to deter the advocates of radical change. On the contrary: Faced with a set of representatives who have made their positions clear, the new aim is to bypass Tallahassee completely and to directly alter the state constitution.

Historically, the gun control movement’s greatest semantic trick has been first to contend that “assault weapons” must be banned, and second to define every weapon it dislikes as an “assault weapon,” on a rolling, constantly updated basis.

Florida’s political system includes a provision that permits citizens to turn a set number of signatures—in total, a number equivalent to just 8 percent of the state’s population—into a ballot initiative that, if passed, becomes part of the state constitution. Led by a group in Miami—and managed by a petition consultancy in California—a group named Ban Assault Weapons Now plans to do just that. If successful, the measure would prohibit the sale of “any semi-automatic weapon that is capable of holding more than 10 rounds of ammunition at once,” and require those who currently own such firearms to register them. Or, put another way, it would gut the Second Amendment to the U.S. Constitution.

Leaving aside the substantive disgrace that such a measure would represent—the aim, clearly, is to prohibit the most popular rifle in the nation—it should be noted that the use of the constitutional amendment mechanism as a means by which to achieve the aim would cause chaos. Constitutions exist to outline general principles or to solidify the elementary rules of government: Elections are to be held every four years; due process is mandatory if the government wishes to punish you; a republican form of government is mandatory; free speech shall not be abridged; the legislature shall be composed of two houses; etc. To try to add into a constitution a list of certain liberties to which the citizenry is not entitled is not only to grievously undermine this purpose, but also to guarantee confusion and error—especially when the topic is “assault weapons,” a term for which there is no meaningful or practical definition.

Historically, the gun control movement’s greatest semantic trick has been first to contend that “assault weapons” must be banned, and second to define every firearm it dislikes as an “assault weapon,” on a rolling, constantly updated basis. Often, it seems that the term means little more than “gun that looks scary,” which is a problem, because “gun that looks scary” can potentially cover every firearm in existence, depending on who is looking at them. Those who watched CNN’s “town hall” after the shooting in Parkland, Fla., will well recognize this risk: By the end of the program, the definition of “assault weapon” had morphed so preposterously that it included all semi-automatic firearms—a point that then-Sen. Bill Nelson, D-Fla., gleefully conceded when challenged by Sen. Marco Rubio, R-Fla. It is not hard to see how a similar transmutation could take place here—or to see how the Legislature would be impotent to stop it. Were Floridians to insert such a vague, malleable, elastic clause into their constitution, they would be penning an open invitation for abuse.

Which is, ultimately, to say that the remarkable progress that Florida has made in restoring the right to keep and bear arms over the last three decades is in danger. Indeed, it is no exaggeration to say that it could all be wiped out at a stroke. The threshold for passage of a constitutional amendment in Florida is 60 percent, which is relatively high. But the threshold for consideration is extremely low—as previously mentioned, just 8 percent of residents can put a measure on the ballot. And once it’s on ... well, then anything can happen. When blind advocacy of a political agenda is the driving force, truth is always the first casualty. What sensible man would risk his basic rights in a battle of TV ads?

Sad as it is to acknowledge, there is no such thing in politics as a permanent victory—no point at which people who remain jealous of their liberties can sit back and finally relax. Vermont’s government spent decades expanding gun rights before, last year, an ostensibly pro-Second Amendment governor turned on a dime and signed the most dramatic restrictions to the right to keep and bear arms that the Green Mountain State has ever seen. Colorado, once a haven for gun owners and libertarians alike, is now a permanent battleground. Even Florida, which spearheaded the renaissance in concealed carry and so much else, is on the list of targets.

It is tempting in our TV-driven age to become sucked into every national fight and every transient outrage—and, indeed, there are times when this is necessary. Now, however, it would be prudent for Second Amendment advocates to pay as much attention to their state capitol as to Washington, D.C., and to their ballot processes as to the impending presidential election.

We are only a handful of weeks past the midterm elections and already the battle lines are being drawn. Today, six or seven states are of interest. In a year’s time, it could be 10, or 20. “Freedom,” said President Ronald Reagan, “is never more than one generation away from extinction.” And this time, the fight is right down the road. 

Charles C.W. Cooke is the editor of National Review Online.



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