September 13, 2004,
At midnight tonight, the federal ban on so-called "assault weapons" expires. As a constitutional moment, the expiration is as significant for the Second Amendment as the March 3, 1801, expiration of the Alien and Sedition Acts was for the First Amendment. These federal laws were not found unconstitutional by any court, but the laws expired in disgrace because our political system, as expressed through congressional elections, determined them to be infringements on the Bill of Rights.
As detailed by Leonard Levy in his book Origins of the Bill of Rights, the political defeat of the Alien and Sedition Acts resulted in a much broader, more speech-protective understanding of the First Amendment. It is possible that that the political defeat of the gun prohibition will have a similar effect.
There is an important difference between the gun ban enacted in 1994 and the speech ban enacted in 1798. The proponents of the Alien and Sedition Acts were aiming to ban particular types of speech but nothing more. The Acts were not the work of a lobby that wanted to outlaw most speech, and that saw the speech restrictions of 1798 as merely "a good first step." In contrast, the primary significance of the "assault-weapon" ban was, and still is, paving the way for much more extensive firearms prohibition and confiscation.
PROHIBITING SELF-DEFENSEIn an April 5, 1996, column in the Washington Post, Charles Krauthammer, who forthrightly supports total gun prohibition, wrote, "Passing a law like the assault weapons ban is a symbolic purely symbolic move in that direction. Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation."
Krauthammer was right. The firearms affected by the 1994 ban are not machine guns; those weapons have been severely regulated ever since the National Firearms Act of 1934. They do not fire faster than other guns, or use more powerful bullets; they are rarely used in crime, as I detailed in an article in the Journal of Contemporary Law.
The 1994 ban squeaked through Congress by just a single vote in both the House and the Senate. To pass anything, proponents had to make significant concessions, such as the now-elapsed ten-year sunset, and removing the proposed registration requirement for lawfully owned guns made before the ban. Likewise, the Bureau of Alcohol, Tobacco, and Firearms was denied any power to ban additional guns. (The Clinton BATF, however, exercised such power anyway, by administratively banning the import of hundreds of models of guns during Clinton's second term a violation of Clinton's promise to wary Congressional Democrats that the 1994 law would be the end of his administration's anti-gun efforts.)
The federal ban covered 19 types of guns by name, and about 200 other guns by generic description. Because the ban defined "assault weapons" by cosmetic features such as whether a gun had a bayonet lug or a particular kind of grip it was easy for manufacturers to comply with the ban simply by removing the offending cosmetics.
The relatively limited ban was, however, far less than the gun-prohibition lobbies had wanted, and far less than they still demand. By refusing to re-enact the sunsetting 1994 ban, Congress has accurately recognized that the real issue at stake is not just the manufacture of some particular firearms, but the fundamental goal of the gun-prohibition lobbies: the creation of administrative authority to ban and confiscate firearms used for self-defense.
A BAD EXAMPLESo-called "assault weapons" first became a major national issue on January 17, 1989, when a drifter named Patrick Purdy attacked a crowded school playground with a semi-automatic rifle and two pistols. After slaughtering five children and wounding many more, Purdy killed himself.
Purdy had a long police record for offenses such as robbery, receiving stolen property, and the sale of illegal weapons. He even vandalized his mother's car when she refused to give him money to buy drugs. But instead of being sent to prison for his crimes, he always slipped through the cracks of the system, avoided a felony conviction, and wound up back on the street.
Bills introduced in Congress shortly after the Stockton murders set the stage for broad prohibition of firearms. Ohio Senator Howard Metzenbaum introduced an "assault weapon" bill empowering the Treasury Department (which at the time was in charge of the Bureau of Alcohol, Tobacco, and Firearms) to administratively ban any self-loading gun that could accept a magazine of more than ten rounds. A gun cannot tell the difference between an eight-round clip and a twelve-round clip: Thus, many millions of rifles, and the majority of handguns, would have been subject to prohibition.
NOT EXACTLY AKsThe Metzenbaum bill directly outlawed over 150 rifles (including .22 caliber) by companies including Remington, Mossberg, and Winchester, and also banned about 75 handguns, including the Glock pistol and the Colt 1911A. Quite obviously, a .22-caliber Winchester rifle, or a Colt pistol invented in 1911, were not the types of guns the public was thinking about when the gun-prohibition advocates were shrieking about the dangers of AK-47 rifles.
But the Metzenbaum bill, like all of the "assault-weapon" bills, was really a bait-and-switch. The AK-47 is a Soviet military rifle, which can fire automatically. (If you press the trigger, the gun will fire until all the ammunition has been used.) According to the Defense Intelligence Agency, the AK-47 is a true "assault rifle": It is carried on the battlefield, can be fired automatically, and fires an intermediate-sized bullet. There are only a few hundred AK-47 rifles in the U.S., mostly in military museums and other collections.
None of the "assault-weapon" bills applied to the AK-47, because the AK-47 was already strictly regulated by the National Firearms Act of 1934, which applies to all automatics. The "assault-weapon" bills were about a) guns that looked like the AK-47 or other military rifles, and b) as many other guns as could be banned, depending on the political climate.
The gun-prohibition lobbies recognize that passing gun bans through a legislature is very difficult, so the lobbies have been diligent in attempting to create administrative authority for gun bans by unelected bureaucrats.
In the House of Representatives, California Democrat Fortney "Pete" Stark introduced legislation to prohibit every self-loading gun that was based on a military or police design. The first self-loading gun not based on a military design was not even invented until the 1920s. With the exception of some specialized hunting rifles and target guns, almost every gun is derivative of police or military design. Low-caliber pistols such as the .22 Ruger or Colt .25 would have been outlawed under legislation that was sold to the public as merely controlling a few unusual "assault rifles."
In 1990, the House Judiciary Committee went even further, passing H.R. 4225 by Rep. William Hughes of New Jersey. The bill banned the possession or sale of any rifle that the Treasury Department did not consider "particularly suitable" for sport. This would have meant the prohibition of all rifles used mainly for self-defense, and all rifles mainly used for target shooting; the Treasury Department, in implementing an administrative prohibition on the import of so-called "assault rifles," had declared in 1989 that the only kinds of guns "suitable for sporting purposes" were guns that were commonly used for hunting.
A SPORTING GIFTOf course the notion that target shooting is not a "sporting use" of firearms is nonsense, since target shooting is the oldest of the modern Olympic sports.
And many "assault rifles" are required for competition in the top target-shooting competitions, such as the National Matches held every year at Camp Perry, Ohio. To acknowledge target-shooting as a sport would have required acknowledging that most guns labeled "assault rifles" are sporting guns.
Politically speaking, passing gun-confiscation statutes is even harder than passing a prohibition on the future sale of guns. But gun-prohibition advocates did their best. After the Stockton murders, Rep. Howard Berman (D., Calif.) introduced H.R. 669 to confiscate 125 models of rifles, 33 different 9mm and .45 caliber pistols, and even four shotguns.
In New York City, gun-prohibition advocates were able to pass a confiscation bill, and the police used gun owner-registration lists to go door to door to prosecute registered gun owners who had not provided the city with proof that their guns had been surrendered or moved out of the city.
Testifying in favor the New York City law, a representative from Handgun Control, Inc., (which later changed its name to the Brady Campaign) argued that any gun capable of holding more than six rounds should be considered an "assault weapon."
More recently, the Million Mom March (a subsidiary of the Brady Campaign) has urged that all pump-action guns be prohibited. A pump-action gun is, obviously, not a machine gun or a semi-automatic gun. Pump-action shotguns and rifles are pervasive in American hunting.
Currently, the gun-prohibition lobbies have united around H.R. 2083/S. 1431. This bill would expand the federal ban to cover guns from companies such as Winchester, Remington, and Springfield, as well the venerable M1 Garand. It bans guns that were specifically declared to be "recreational firearms" by the 1994 gun-ban law. The new bill gives the attorney general unilateral authority to ban any semi-automatic rifle or shotgun that he decides is not "particularly suitable" for sporting purposes.
The bill even bans the semi-automatic Remington 11-87 shotgun that John Kerry received as a gift on Labor Day in Racine, West Virginia. S. 1431, co-sponsored by Senator Kerry, says that an "assault weapon" is any semi-automatic rifle or shotgun with a "pistol grip." According to the bill, "(42) PISTOL GRIP The term 'pistol grip' means a grip, a thumbhole stock, or any other characteristic that can function as a grip." Kerry's new Remington has a protrusion below the stock, which a person could grip. The protrusion is not a "pistol grip" in the ordinary meaning of the term, but it is a "pistol grip" as defined by S. 1431.
Although Kerry's failure to wear eye and ear protection while shooting sets a bad example on gun safety, Kerry has demonstrated that he's a pretty good trap shooter; he obviously recognized the Remington he received as a high-quality trap gun. Kerry has consistently stated that while he favors "assault weapon" prohibition, he strongly opposes banning sporting guns. Thus, John Kerry, like many other Americans, is a victim of the gun-prohibition lobbies' bait-and-switch.
Kerry is right when he says that nobody needs an AK-47 to go hunting. Kerry has been duped, however, into believing that "assault-weapon" laws are about banning the AK-47, rather than about banning as many ordinary guns as possible, including Kerry's new shotgun.