Assault Weapons Ban, Part II: How to Prevent a Meaningful Dialogue on Guns and Gun Control
Dianne Feinstein has now set out the parameters of her proposal to reinstate the federal assault weapons ban, as well as a ban on firearm magazines with a capacity for holding more than 10 rounds (“AWB”). As reinstatement of the AWB (and the prohibition on “high capacity magazines” included therein), which existed between 1994 and 2004, is the gun control policy that is being most pushed in the wake of the horror in Newtown, Connecticut, it is worth looking at what the proposed reinstatement does and does not do, and why many responsible gun owners view it as a nonstarter at best, with at least one prominent conservative blogger calling it the “the first shot in an all-out war against gun owners (i.e., red America) by the Democratic Party.”
First, a quick primer on the 1994 AWB. There is a common perception that the AWB was responsible for prohibiting “machine guns,” ie, weapons capable of fully-automatic fire; this perception is completely incorrect – machine guns have been heavily restricted since the 1930s, and newly manufactured machine guns have been completely and continuously banned for all but law enforcement and military since 1986. Instead, the 1994 AWB, versions of which are still in effect in several states, prohibited (a) semi-automatic (meaning a firearm that shoots a single round whenever the trigger is pulled, essentially including every firearm that is not a machine gun, single-shot, or bolt action firearm) rifles* with (b) capability to accept a detachable magazine; AND (c) any TWO of the following: (1) folding or telescoping stock; (2) “pistol” grip; (3) bayonet mount; (4) flash suppressor**; or (5) grenade launcher***. The ban also separately banned magazines with more than a 10 round capacity. The ban was justified on the grounds that there “is no legitimate reason for a private citizen to have access to high-powered, military-grade weaponry,” even though the ban made no reference to either caliber, range, or muzzle velocity.
To gun owners, this ban, and similar bans in several states, particularly as applied to rifles deemed “assault weapons,” was extraordinarily offensive, explicable only as the camel’s nose in the tent towards a complete or near-complete ban on firearms. Although there were several reasons for this, the most common and important was that the ban targeted features of firearms that were either common to the overwhelming majority of firearms (semi-automatic and capable of accepting detachable magazines) or had nothing whatsoever to do with the firearm’s potential to cause harm (the elements of the “two feature” test).
Excerbating the problem was that, when this was pointed out to proponents of the AWB, the response was either crickets, a return to the slogan about “military-grade weaponry,” or, at best, a claim about the dangers of semi-automatic firearms; in two decades of following this debate closely (and for a time being intimately involved with it), I have not once heard an AWB proponent attempt to explain, much less satisfactorily explain, how the elements of the “two feature” test make a firearm more dangerous or susceptible to criminal usage. Since almost all modern firearms are semi-automatic and many/most have detachable magazine capability, justifying the AWB solely with reference to those characteristics left an undeniable impression that those characteristics were the real target of the AWB, and that the AWB’s only practical use was as a first step towards banning all semi-automatic firearms.
The AWB of course sunset in 2004, and sales of firearms previously subject to the AWB have skyrocketed, even as gun control advocates have consistently kept reinstatement of the ban at the very top of their priority list.****
In the wake of the Newtown and Aurora tragedies, the push for gun control legislation understandably has gained a renewed vigor. Unfortunately, rather than learning the lessons of why the original AWB failed and trying to focus on proposals that would at least have a theoretical possibility of reducing gun violence, advocates of gun control seem to largely be doubling down on reinstatement of the AWB. To be sure, the ban on high-capacity magazines which would accompany any reinstatement, about which more below, has a real rationale worth consideration, but advocates seem insistent on tying that to an AWB rather than putting it forward for separate consideration.
Sen. Feinstein’s above proposal for a reinstatement demonstrates this problem all too well – although it at least eliminates the pointless inclusion of “flash suppressors” and bayonet mounts from the ban, it also reduces the two-factor test to a one-factor test. Simply put, this new proposal would ban any semi-automatic rifle with a detachable magazine if it has either a folding stock or a “pistol grip.” Again, no effort seems to be made to explain how, exactly, a folding stock or pistol grip make a firearm abnormally dangerous or susceptible to criminal use. Worse, it expands the definition of a “pistol grip” to include a “thumbhole stock,” meaning that something like this would be banned on the rationale that a “thumbhole stock” is just a way of circumventing the restriction on pistol grips; no rationale is given for why pistol grips or folding stocks should be prohibited characteristics in the first place.
Although the renewed AWB again grandfathers existing owners of these firearms, as it essentially must, it creates a new, remarkably onerous registration scheme for these grandfathered firearms (requiring the registrant to obtain a letter from local law enforcement and that he not only submit to a background check, but also submit fingerprints), with a failure to register a grandfathered firearm presumably resulting in criminal penalties. No provision is made for any sort of buyback program for these firearms. In essence, this “grandfathering” provision comes across as an attempt to retroactively punish gun owners for lawful purchases.
That these provisions are inextricably tied to, and indeed largely overshadowed by, a renewed effort to restrict magazine capacity, also included in Feinstein’s proposal, is especially unfortunate. Although magazine capacity is far from a cure-all and at best can help the problem of gun violence at the margins, there is at least an articulable, clear and readily understood rationale for such restrictions: an attacker who must stop to reload, even for a few seconds, is an attacker who can be stopped. This is indeed precisely what allowed civilians an opportunity to put an end to Jared Lee Loughner’s brutal killing spree outside a supermarket.
The arguments in opposition to such magazine restrictions are also far weaker than the arguments against the AWB more generally. These arguments emphasize that even with a restriction on magazine capacity, it would be simple for a would-be attacker to simply bring additional magazines, which an experienced gun owner can switch out in around a second. However, the fact is that even a second can create an opening to stop or slow down an attacker; moreover, the implicit assumption that those who would use firearms for evil are as experienced with firearms as a gun owner who likes to go to the range on a semi-regular basis seems more than a little flawed.
Regardless of which set of points on magazine restrictions is strong, though, the point is that there is at least a real discussion to be had on the issue. It at least has a sufficiently plausible basis that it does not inherently imply that it is the first salvo in a broader “war on guns.” And while it would, at best, create the possibility for marginal improvements on the issue of gun violence, by allowing for an actual discussion rather than a bunch of yelling from all sides with no listening, it can form the beginning of an actual, meaningful dialogue on how to solve the scourge of gun violence.
The simple, undeniable reality of the problem of gun violence is that any solution, to have any chance of working, must have at least the acquiescence of the tens of millions of gun owners in this country. What’s more, to succeed, it also needs real input from those owners on how firearms are actually used and actually work; otherwise, it might as well be an attempt to regulate a barely understood planet.
By insisting on a renewed AWB as the centerpiece of any attempt to reduce gun violence, gun control advocates make it nearly impossible for that badly needed dialogue to happen.
*The AWB also prohibited certain semi-automatic handguns; however, because most of the debate surrounding an AWB is with respect to the rifle ban and high capacity magazine ban, it is not worth here addressing the traits of handguns classified as “assault weapons.”
**A flash suppressor is often mistaken for a “silencer,” but is not at all the same thing – a flash suppressor is not used to muffle the sound of a firearm, but is instead used to suppress the visible “flash” of the firearm, which can make it difficult for the shooter to see what he is firing at. To the extent the firearm is being used for non-criminal purposes, I expect most would agree that enabling the shooter to see what he’s shooting at is properly viewed as a safety feature.
***Although grenade launchers sound like a non-cosmetic trait, as a functional matter that is exactly what they are in civilian hands, as it is close to impossible for a civilian to get their hands on the sort of high-explosive grenade that w0uld make the use of a grenade launcher abnormally dangerous – there’s a reason you don’t really ever hear about homicides by grenade launcher outside of legitimate war zones. Instead, they get used for things like this.
****The role of the continuing threat to reinstate the AWB in perhaps artificially increasing demand for these firearms is an aspect of this discussion that deserves further exploration.