 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.
