Originally Published: December 30, 2017 6:01 a.m.
PHOENIX — A Prescott lawmaker is proposing changes in state law designed to protect the right of Arizonans to keep their weapons no matter what a future Congress decides.
But the attorney who crafted it for Republican Rep. David Stringer said that still won’t let Arizonans keep their “bump stocks” if the federal government declares them illegal.
The legislation spells out the kind of weapons that the state believes are necessary for those who are members of the state militia. Existing Arizona law already says that automatically includes all “able-bodied citizens of the state” between 18 and 45.
And just to be sure that folks who turn 46 don’t lose their gun rights because of new federal laws, HB 2057 also would expand the definition of the militia to remove the maximum age. But it would add a new requirement that they be “capable of acting in concert for the common defense.”
The measure — and a companion constitutional amendment — will be introduced by Stringer in the next session of the legislature, which begins in less than two weeks. He wants to ensure that whatever occurs in Washington doesn’t interfere with the right of law-abiding Arizonans to possess firearms.
But Stringer left it to attorney Michael Taylor, who has some expertise in the area of gun rights, to come up with the actual language. And Taylor said it is crafted to conform to a series of U.S. Supreme Court decisions that have upheld gun rights.
The key, Taylor said, is the Second Amendment which refers to “a well-regulated militia” and the right to bear arms. He said the high court has relied on that to curb federally imposed gun restrictions.
But Taylor said it’s not that simple. He said each of those prior rulings have been based on the affected states defining not only that they have militias but what they determine to be the necessary weapons for such bodies.
HB 2057 seeks to do just that.
“We’re not making anything new legal,” Taylor said. “We are simply providing a mechanism for the court to decide in our favor.”
It first spells out that Arizona needs “a body of citizens within this state who possess and are trained in the use of arms.” It then contains a laundry list of weapons and related equipment that are considered “particularly suited” for such purposes and says that those who are members of the militia may possess and transport them in the state “for all lawful purposes.”
That list includes any semiautomatic handgun, revolver or shotgun as well as any related equipment like noise and flash suppressors, aiming systems, trigger systems, bayonets, carrying slings and lights. It even covers “any other small arms weapons system, ammunition, accessory or equipment that is in use by the armed forces of the United States or that is authorized for use by any law enforcement agency in this state.”
But Taylor said that does not necessarily overrule all federal laws and restrictions.
For example, he said U.S. citizens are, in fact, allowed to possess certain machine guns. Taylor said, though, nothing in this legislation would exempt Arizonans who want one from having to go through the special process now in place to get licensed for one, ranging from a $200 tax stamp and three sets of fingerprints to a background check that could take a year.
A bit less specific is that the law would allow Arizonans to possess “sufficient quantities of ammunition necessary to maintain a high degree of proficiency of arms.”
“If it goes to court, it will obviously have a ‘reasonable man’ standard applied to it,” Taylor said. “It depends upon the specific circumstance, the specific gun.”
He cited the example of someone who is an Olympic medalist who competes in firearms.
“She goes through some utterly amazing amount of ammunition daily, weekly, etc., to maintain her degree of proficiency to be able to keep competing at that Olympic level,” Taylor said.
So where do “bump stocks” fit into all of this? The controversial devices attach to semi-automatic weapons, with the recoil effectively enabling the user to fire off rounds in rapid succession without actually pulling the trigger each time. It’s existence became widely known in the wake of the Las Vegas mass shooting in October where a gunman firing from a nearby hotel killed 58 people attending an outdoor concert and wounded hundreds more. It is not covered under existing laws restricting automatic weapons because the rifle itself technically remains its semi-automatic configuration.
Some early congressional efforts to address the device proved non-starters, with the focus now on whether the federal Bureau of Alcohol, Tobacco, Firearms and Explosives might be able to revamp its own rules to include bump stocks under its regulations of automatic weapons.
“Ultimately, should the ATF make a determination that a bump stock on a firearm no longer allows that firearm to maintain the definition of ‘semi-automatic,’ then, obviously, it would no longer be protected under our rubric here,” Taylor said. Only those who have permission to have fully automatic weapons would be able to have them; anyone else with a bump stock would have to destroy it.
Along the same lines, he said the legislation could not be stretched to the point where Arizonans could claim it gives them the right to have any weapon they wanted. Taylor said courts would judge them using a “common-use test.”
“At no point has a thermonuclear weapon ever been in common use by civilians for their own defense,” he said. “In fact, at no point has a tank, at no point have Howitzers, at no point have any of these things been in common use for civilians for their defense. So that’s already a non-starter with the court.”
While the Legislature itself could enact the list of protected weapons, it would be up to voters to decide whether older Arizonans are guaranteed the same rights.
That’s because the current definition of what’s a militia — including the cap of age 45 — is actually part of the Arizona Constitution. And amendments require voter approval.
“We are trying to protect as many Arizonans’ rights as we possibly can,” Taylor said. “Just because you are 46 or over you shouldn’t lose your firearms right.”