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The following article is under submission. Reproduction
on computer bulletin boards is permitted for informational
purposes only. Copyright (c) 1993 by J. Neil Schulman.
All other rights reserved.
WHAT CAN WE LEARN FROM WACO?
by J. Neil Schulman
Whoever said that extreme cases make for bad law must
have been thinking of the gun-control proposals that are
already being discussed in the wake of Waco.
The February 25, 1993 warrant that the federal Bureau of
Alcohol, Tobacco, and Firearms (ATF) obtained was for David
Koresh's arrest and the search of the Mount Carmel facility.
ATF had a reasonable suspicion that Koresh was buying up
parts to convert two semi-auto AR-15 rifles into full-auto
AR-15's functionally similar to the select-fire (semi-auto or
full-auto) M-16 assault rifles used by the military. Buying
such parts is of itself legal, but conversion of semi-auto to
full-auto without first paying a $200 federal excise tax has
been prohibited since the National Firearms Act of 1934.
This 1934 law is convoluted and obscure. Congress passed
it under its authority to levy excise taxes, but the way ATF
interprets it, mere possession of parts which could be used
to convert a semi-auto rifle to full-auto is illegal unless
you \first\ get a manufacturing license from the ATF. In
other words, you have to pay the tax \before\ you have
possession of that which is being taxed -- a unique
interpretation of how excise taxes are supposed to work.
Since 1986, when Congress passed the McClure-Volkmer Act,
no licenses to manufacture full-auto weapons with parts
manufactured after 1986 will be issued at all. This is
back-door federal gun control, since the Constitution grants
Congress no authority to regulate the manufacture or
possession of firearms, for their own use, by private
citizens. The 1938 Federal Firearms Act and the Gun Control
Act of 1968 -- which regulate interstate commerce in firearms
-- are constitutionally inapplicable to the manufacture,
possession, or peaceful use of firearms on one' own property
-- which is all the original warrant alleges Koresh did.
The tenth amendment to the U.S. Constitution states, "The
Powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the
States respectively, or to the people." Texas does not
prohibit, nor does it require licenses, for manufacturing or
owning fully automatic firearms.
The 1939 Supreme Court decision US v. Miller affirmed the
Second-amendment-right of a private citizen to own military
small arms, requiring that a weapon, to be protected by the
Second Amendment, must be "part of the ordinary military
equipment or that its use could contribute to the common
defense." In other words, the federal government would only
have authority to restrict arms that \don't\ have military
application.
Now we get to Koresh. The affidavit attached to the
ATF's February 25th search warrant includes the following,
written by ATF Special Agent Davy Aguilera:
On February 22, 1993 ATF Special Agent Robert Rodriguez
told me that on February 21, 1993, while acting in an
undercover capacity, he was contacted by David Koresh and
was invited to the Mount Carmel Compound. Special Agent
Rodriguez accepted the invitation and met with David Koresh
inside the compound. ...
David Koresh told Special Agent Rodriguez that he believed
in the right to bear arms but that the U.S. Government was
going to take away that right. David Koresh asked Special
Agent Rodriguez if he knew that if he (Rodriguez) purchased
a drop-in-sear for an AR-15 rifle it would not be illegal,
but if he (Rodriguez) had an AR-15 rifle with the sear
that it would be against the law. David Koresh stated
that the sear could be purchased legally. David Koresh
stated that the Bible gave him the right to bear arms.
David Koresh then advised Special Agent Rodriguez that he
had something he wanted Special Agent Rodriguez to see.
At that point he showed Special Agent Rodriguez a video
tape of ATF which was made by the Gun Owners Association
(G.O.A.). This film portrayed ATF as an agency who
violated the rights of Gun Owners by threats and lies.
Clearly, David Koresh believed that the federal gun-
control laws were unconstitutional, and that ATF was acting
illegally. If the serving of the ATF warrant had gone off
peacefully --as was the case when Koresh was arrested for
attempted murder several years earlier (he was exonerated) --
then the issues raised under the 1934 National Firearms Act
probably would have been litigated. Now, even though the
federal firearms laws need even more pressingly to be
litigated, the emotions surrounding anything having to do
with the Davidians' fiery death are bound to make for bad
precedents.
As it stands now, we have what is supposed to be a
federal tax law being used for constitutionally questionable
purposes -- and the warrant which was issued, based on David
Koresh having failed to pay four-hundred dollars in excise
taxes, resulted in an army of federal agents being used
to serve a warrant in a maximally aggressive manner on the
rumors that David Koresh had an immoral lifestyle and was
somehow, therefore, unworthy of possessing dangerous weapons.
All of this finally comes down to prudential
considerations. What do we as a society have to fear more
-- a David Koresh, or an Adolf Hitler? The 1938 Nazi
Weapons Law -- which the late Senator Thomas J. Dodd (D-Conn)
had the Library of Congress translate as the basis for the 1968
Gun Control Act which he authored -- disarmed Germany's
Jewish citizens and made it possible for the democratically-
elected German government to murder millions of innocent people.
Even if we concede that David Koresh had the lifestyle of Idi
Amin, Koresh did not represent anywhere near as lethal a threat
as a government gone feral. Clearly, if we make our gun-control
laws aggressive enough to be effective in disarming David Koresh,
we also disarm the bulk of the peaceful citizenry which is
supposed to deter political murders a hundred thousand times
as large as anything a minor cult could accomplish.
The same arguments which demand that a balanced ecology
requires not eliminating species of toads can be used for a
political ecology. Political ecology demands that one
shouldn't remove weapons from the citizenry that
counterbalance weapons held by potentially predatory
governments. You have to decide whom you fear more: a
citizenry which outguns police or police which outgun the
citizenry. The former may tend towards anomie -- as our
epidemic violent crime demonstrates -- but the latter
has historically proved genocidal time and time again.
If anything has come clearly out of this tragedy, it's
that the ideological conflict between those who believe public
security can be achieved by an armed government and a disarmed
populace, and those like me who believe that an armed
citizenry is the bulwark of a free society, needs to be
discussed dispassionately and publicly, until a social
consensus has been reached. The hyperemotionalism resulting
from using Waco as an example of what needs to be done, one
way or the other, is bound to make for bad law.
The Bureau of Alcohol, Tobacco, and Firearms found plenty
of reason in existing gun-control laws to serve an arrest
warrant on David Koresh. That they failed to do so in an
effective manner is surely no reason to burden sane and civil
gun-owners with laws that will make them even more vulnerable
to the predations of the demagogues who roam this planet --
whether they enchant eighty followers or eighty million.
##
J. Neil Schulman is a novelist and screenwriter.