Harsanyi eviscerates post supporting AR-15 bans

AP Photo/Lisa Marie Pane

Once upon a time, the target of choice for gun control advocates was the handgun. They didn’t figure you needed one for hunting but criminals had all kinds of uses for them. In their mind, that meant they were ripe for banning.


It sounds a lot like what they say about the AR-15, doesn’t it?

Recently, a post at Bloomberg apparently tried to make the case that yes, the AR-15 can be banned. It’s nothing we haven’t heard before, of course, but it’s out there yet again.

Over at The Federalist, David Harsanyi decided to take a swing at debunking the claims.

Gun control advocates have become so dependent on emotional arguments they often seem incapable of offering rational ones. So, I was eager to read a new Bloomberg column (via The Washington Post) headlined, “The Second Amendment Allows a Ban on the AR-15.”

The piece doesn’t get off to a promising start, as author Noah Feldman props up a familiar straw man:

If we each have the right to bear arms, is there a constitutional right to a military-style semiautomatic rifle like an AR-15? What about a rocket-propelled grenade launcher? A small tank?

Notice how he jumps from the oxymoronic “military-style semiautomatic rifle” — not a real thing — to a small tank. Anyway, the proposition is that we should not have access to military-grade armaments. (Feldman is unaware that owning a small tank is legal.) But we’ll get back to that in a second.

Throughout the piece, Feldman treats the Second Amendment as some kind of courtesy “extend[ed]” by the state, rather than an inalienable right that can only be limited in extraordinary circumstances. The best way to avoid this confusion is to plug the words “First Amendment” whenever you see “Second Amendment” and the words “newspapers” every time you see “guns.” Though perhaps these days that won’t help either.


Feldman, it seems, rests much of his argument not on Heller, McDonald, or Bruen–the three most recent Second Amendment cases–but on United States v. Miller, a 1939 decision that set much of the stage for gun control in this country.

It starts will Jackson Miller and a companion being arrested with an illegal short-barreled shotgun. They were prosecuted under the National Firearms Act and tried to plead guilty, but the judge refused their pleas and had attorneys appointed.

Despite Miller being killed while on the run afterward, the case made it to the Supreme Court, which is where Harsanyi provides some interesting information. In particular that Miller’s lawyers didn’t file a brief or even show up for oral arguments.

This was also before the era of gun rights groups. Sure, the NRA existed, but due to the fact that advocacy wasn’t really needed, they tended to focus on education at the time. As such, there was no one to defend the Second Amendment at all.

The Supreme Court issued a muddled opinion affirming the constitutionality of the NFA, finding that the Second Amendment didn’t guarantee an individual the right to keep and bear a sawed-off double-barreled shotgun shorter than 18 inches, which was a weapon commonly used by criminals rather than law-abiding citizens. “In the absence of any evidence tending to show that 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,” the court found, “we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” (The justices were wrong, by the way. The military did use 14-inch barrel shotguns at the time, though there was no lawyer there to inform them of this fact.)

Feldman tries to argue that even Justice James McReynolds, a crazy “libertarian,” was a reasonable voice on guns 84 years ago. But the truth is the NFA didn’t ban any kind of mechanism or any class of weapon. In 1939, a person could walk into a drug store and buy a tommy gun if they pleased, after paying a tax.


In other words, Feldman didn’t really comment on any kind of gun ban because there was no ban. It wasn’t until 1984 that we saw NFA items banned to any degree.

It seems that Feldman then goes onto the old trope about the introductory clause to the Second Amendment as if that somehow limits that whole “the people’s right…shall not be infringed.”

Harsanyi basically eviscerates Feldman’s arguments, though they aren’t particularly original arguments in the first place. Far too many people put too much importance on Miller, despite Miller not actually doing much except upholding the taxation requirements included in the NFA.

The ultimate premise here is that no, the AR-15 cannot be banned in a constitutional manner. Should states or the federal government try, especially post-Bruen, they’re going to get slapped down hard by the courts and all of us who own the rifles will be able to keep on owning them.

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