Ban Assault Rifles

As former Chief Justice Warren Burger once made clear, the freedom to bear these arms is "one of the greatest pieces of fraud"

On April 3, Nashville-area students protested at the Tennessee state capitol building after another mass shooting on March 27. (Photo by Seth Herald/Getty Images)

In 1991, Warren Burger, the former Chief Justice of the U.S. Supreme Court, appeared on PBS News Hour and said exactly what he thought about the Second Amendment: “If I were writing the Bill of Rights, there would be no such thing as the Second Amendment—that a well-regulated militia being necessary for the defense of the state, the peoples’ rights to bear arms.”

“This,” he continued in no uncertain terms, “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have seen in my lifetime.”

These comments were not some throwaway words, uttered by chance. Just days earlier, Burger penned an op-ed for the Associated Press titled “2nd Amendment has been distorted: The Second Amendment does not guarantee every citizen the unfettered constitutional right to have a machine gun.”

I urge you to read his whole piece, but consider a few of his observations here that, were they heeded, would have placed us in a world less bloody, less deadly, less wracked with the current and constant drumbeat of mass shootings and suffering—and no longer the centerpiece of mindless certitude and virulent refusal by Republicans bent on sustaining America’s epidemic of gun violence. Focusing on a “well-regulated militia” and the “people’s right to keep and bear arms,” Burger wrote:

Few things have been more vigorously debated—and distorted—in recent times than the meaning of this clause, and very few subjects have been as cluttered and confused by calculated disinformation circulated by special interest groups…

The real purpose of the Second Amendment was to ensure that the ‘state armies’—’the militia’—would be maintained for the defense of the state…The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires…

If an 18th-century militia was intended to be ‘well regulated,’ surely the Second Amendment does not remotely guarantee every person the constitutional right to have a ‘Saturday Night Special’ or a machine gun without any regulation whatsoever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms so they do not get into the hands of persons with significant criminal records or mental impairments, or people who are engaged in criminal activity.

By analogy, although there is not a word or hint in the Constitution about automobiles or motorcycles, no one would seriously argue that a state cannot regulate the use of motor vehicles by imposing licensing restrictions and speed limits based on such factors as a driver’s age, health condition, and driving record, and by recording every purchase or charge of ownership.

In 1994, three years after Burger’s comments, an assault weapons ban went into effect, barring the "manufacture, transfer, and possession" of over 100 firearm models and all magazines holding more than 10 rounds of ammunition. Over the following decade, deaths from mass shootings declined modestly—those who possessed assault rifles were allowed to keep them—but deaths more than tripled in the decade after the ban expired in 2004. And deaths from mass shooting jumped from an average of 4.8 per year during the ban to 23.8 per year on average in the decade that followed.

The impact of such a ban then, while no panacea given the proliferation of these killing machines already in the hands of millions of Americans, is far from theoretical. But even though nearly two decades after the 1994 ban expired, when we have seen the number of mass shootings expand exponentially—Pew Research notes, for example, a tenfold increase in active shooter incidents from four in 2004 to 40 in 2020)—the deeply cynical political calculation by Republicans to ending this particularly American nightmare remains fierce.

In short: The refusal to act is suicidal and perhaps the grimmest expression of our representative government’s failure to support the will of the majority, serve the common good—and respond to the heartbreak and lifelong trauma that survivors and victims’ families and friends must endure.

This discussion could have been written most any time after any one of the more than 141 mass shootings in the first three months of this year. I had planned a version of this immediately after the murder of three nine-year-old children and three adults in Nashville last week at the private Christian Covenant School (before the indictment of Trump caused me to shift focus).

But the inspiring protest this week following that mass shooting by thousands of students and the dispiriting response by the GOP-led Tennessee legislature reveals both the intensity of the desire for change and the anti-democratic lengths the opposition will go to maintain the status quo and ensure a continuing national bloodbath.

Organized by March for Our Lives, a youth-led group formed after the 2018 Parkland shooting that left 17 dead, the Nashville protest happened during the day when thousands of students left class and marched to the Tennessee State Capitol. “They walked out and marched to turn their grief into action,” March for Our Lives said in a statement, “and will return again and again until the job is done. When lawmakers refuse to act, kids die looking down the barrel of a gun. Young people will fight until we win."

With chants during Monday’s march such as “Ban assault weapons!” and “This is what democracy looks like!” and “What do we want? Gun control. When do we want it? Now,” hundreds of the students and parents entered the Tennessee state capitol building later to demonstrate their desire for gun control. This included banging on the floor outside the House Speaker’s office and yelling “kids are dying” and “blood on your hands.”

William Lamberth, Tennessee House majority leader, spoke to protestors and claimed this: “You can ban that specific [assault weapon], but you are going to do almost nothing to improve y’all’s safety. I’m sorry, that’s a fact. It is.”

Meanwhile, three Democratic House members who protested Tennessee’s loose gun laws on the state legislature floor, faced a vote of expulsion yesterday by the supermajority of Republican legislators. The reason, according to House Speaker Cameron Sexton, was they “rushed the well” and “led a protest on the House floor with a bullhorn.” His conclusion: “Their actions are and will always be unacceptable, and they break several rules of decorum and procedure on the House floor.” Other GOP members called their behavior an “insurrection.”

Two of the three Democrats, Reps. Justin Jones and Justin Pearson, were removed yesterday along party lines. The third, Rep. Gloria Johnson, avoided expulsion by a single vote. (Johnson, who is white, was asked why she wasn’t expelled like Jones and Pearson, who are both Black. “It might have to do with the color of our skin,” she said.)

This is only the third time since the Civil War when the Tennessee House has expelled any of its members. Their so-called “disorderly behavior” in the name of ending gun violence—not their silent consent to the continuing massacre of children—was too much for these Republicans to bear.

Even as the fraud cited by Warren Burger continues to falsely legitimize claims that it’s the people’s sacred, constitutionally guaranteed right to get and keep any kind of weapon, let’s remain optimistic that sanity will eventually prevail. We must speak out about what’s right and true. It’s time to ban assault rifles.

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