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Stopping Power — Why 70 Million Americans Own Guns
A Book by J. Neil Schulman
Was Waco Warranted?

The following article appeared in the Sunday Orange County Register, Commentary section, May 16, 1993.

Whoever said that difficult 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. Once one gets past padding and irrelevancies, the warrant alleges 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 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 acquiring an occupational license from ATF and paying a $200 federal excise tax has been prohibited since the National Firearms Act of 1934.

This 1934 law is convoluted and ambiguous, made even more so by the 1968 Gun Control Act and the 1986 McClure-Volkmer Act. Congress passed these laws under its authority to levy excise taxes and regulate interstate commerce, but the federal statutes make mere possession of legal parts which could be used to convert a semi-auto rifle to full-auto 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 not a legally permissible form of 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 1968 Gun Control Act and the 1986 McClure-Volkmer Act — which regulate interstate commerce in firearms — are constitutionally inapplicable to the manufacture, possession, or peaceful use of firearms on one’s 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 — the latest applicable precedent — 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.)1 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 previously the case even when Koresh was arrested for attempted murder several years earlier (he was exonerated) — then the issues raised under the federal firearms laws 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 excise taxes, resulted in an army of federal agents being used to serve a warrant in a maximally violent manner on the unproven allegations that David Koresh had an immoral lifestyle and was somehow, therefore, unworthy of possessing dangerous weapons. Not only had allegations regarding child abuse at the Davidian residence been previously investigated by Texas authorities and found to be groundless — again, with local authorities gaining access to the Davidian residence without problem — these charges are not within federal jurisdiction in the first place.

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 — functionally similar to our current federal gun-control laws — disarmed Germany’s Jewish citizens and made it possible for the democratically-elected German government to murder millions of innocent people. Even if we were to 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 extremists, we also disarm the bulk of the peaceful citizenry which could 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 the citizenry remained armed to 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 advocates of gun-restrictions claim — 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. 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 excuses in existing gun-control laws to serve an arrest warrant on David Koresh. That they failed to do so in a reasonable 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.

After writing this article, shortly after the final holocaust at the Branch Davidians’ Mount Carmel Center in Waco on April 19, 1993, I became one of a number of journalists who looked into misconduct by the ATF and FBI agents in charge of the raid, stand-off, and final assault. I’ve concluded several things.

The first is that when it comes to opposing what they perceive as “gun nuts” and “cultists,” the major media in this country are willing to allow government officials unchallenged credibility in their claims about the Branch Davidians criminality, regardless of evidence to the contrary. It’s a sad day when one gets a more balanced account of a major federal law-enforcement operation from Soldier of Fortune magazine than any major-city newspaper, national magazine, or television network.

It’s my current personal belief that the initial ATF raid on Waco was conducted as a public-relations stunt before Congressional budget hearings, where ATF officials were otherwise going to have to explain a sexual-harrassment scandal at the agency which CBS’s 60 Minutes had uncovered a few weeks earlier.

Experts in law-enforcement have told me the affidavit used to obtain the warrant failed to provide any reasonable cause to believe the Branch Davidians were engaging in illegal activities.

Further, the warrant did not authorize a no-knock raid, nor the violence which the ATF agents used in serving what was only supposed to be a search warrant against a group of people who had never resisted authorities before. And, there is much evidence that the ATF agents fired first, and that it was only after the Branch Davidians called 911 twice to get the agents to stop shooting that they unpacked firearms which were supposed to be sold at a gun show, to defend themselves and their children.

During the 51 days when the FBI cut off the Branch Davidians from all communication with the outside world, the only source the American people had about the events in Waco were the daily news briefings by FBI agent Bob Ricks. The press were kept three miles away and did nothing to protest getting only the official, censored story. During that period, and on the final day, the FBI employed methods of psychological and chemical warfare, on a house containing children, that would have been called war crimes if presented in testimony at Nuremberg.

And, the best evidence I’ve been able to obtain as of this writing is that the FBI, not the Branch Davidians, started the final fire by knocking against the house with their combat engineering vehicles, which resulted in the deaths of 81 men, women, and children, who seem to have done nothing more dangerous than buy and sell legal guns for profit, engage in unorthodox religious and sexual practices, and believe that the Book of Revelation applied to them.

In this belief, David Koresh was certainly correct.

The final irony of Waco is the date of the final assault, April 19, 1993: the anniversary both of the rout of British soldiers on a gun-confiscation detail by intransigent gun owners at the Old North Bridge, Concord Massachusetts, on April 19, 1775; and the fiftieth anniversary of the uprising against the Nazis by the Jews of the Warsaw Ghetto, on April 19, 1943.

As of this writing, the only persons tried for the deaths at Waco were those who were living peacefully in their bible center before the government troops showed up. All the eleven Branch Davidians charged with murder and conspiracy to murder the ATF agents who invaded their home were acquitted of those charges; the only convictions were for voluntary manslaughter and firearms violations.

So tell me. What are you supposed to do when it looks as if the federal government can cover up war crimes on its own citizens with a Soviet-style show trial of the victims, and nobody with a nationally respected voice seems to care? — JNS

Footnote:

1 Like much else in the affidavit, this was incorrect. The organization is Gun Owners of America.

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