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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.


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