Posted on 09/15/2012 6:25:47 AM PDT by marktwain
I served as a counsel to the Senate Judiciary Committee, attached to a U.S. senator who was one of the original co-sponsors of the Federal Assault Weapons Ban. I worked in the Senate when the act was up for renewal. The law was not re-enacted. With the recent media coverage of several incidents of tragic firearms violence, questions of gun control have risen again. Answers are complex.
The positions of those who oppose any restrictions and those who are against civilian gun ownership are relatively simple. The former tend to blanket themselves in the Second Amendment, notwithstanding that no court has said that the federal or state governments cannot restrict some forms of ownership — such as the current prohibition on general civilian ownership of machine guns. The latter face perhaps an even bigger hurdle: the explicit language of the Constitution coupled with the U.S. Supreme Court's two recent rulings cementing individuals' gun-ownership rights.
For those in between, the discussion is difficult and often clouded by misinformation. Take, for example, the guns and accoutrements used in the vicious and cowardly Aurora, Colo., slaughtering. The assailant used three different guns: an AR-15, a pump-action shotgun and a Glock .40-caliber handgun. Let's look at each one and the legal issues that surround them.
The AR-15 is the civilian version of the well-known military M-16. The most important distinction between the two is that it is not automatic — what some would slightly inaccurately call a machine gun. That is, it shoots like many other rifles used for hunting and target fire: Each time the user pulls the trigger, one — and only one — bullet is shot. This gun, under the now-expired assault-weapons ban, was illegal — for sure. However, its virtual copy, the "matchpoint," was not. Also, under the assault-weapons ban, owners of any guns on the prohibited list who purchased their guns prior to the law's enactment could continue to own their guns and, indeed, sell them. (And they did so during the ban at a nice premium.) In other words, the ban was not a ban, but a prohibition on the manufacture and sale of new versions of guns on the list.
Relatedly, under the ban, new matchpoints were sold with the low-capacity 10-round magazines. However, not only were preban high-capacity clips readily available and perfectly legal — new high-capacity magazines (often made in China or Eastern Europe) readily found their way into the United States. The assailant in Colorado used a now-legal superhigh-capacity magazine — a 100-round drum. These devices, which look like shallow oil cans (picture the iconic "tommy-gun" from prohibition days) are actually less deadly than the most lethal clips — ordinary high-capacity magazines (in, say, the 30-round range) — because they almost invariably jam, as did the Colorado assailant's.
The next gun, the Remington 870, is the archetype of modern shotguns. It is used by law enforcement and civilians alike. While I have not yet seen the tragic ballistics reports from Colorado, this gun is the most deadly of the three used in the type of context in which it was wielded. Remember, of course, that all guns are designed to be deadly. So, this relative description is not normative — one way or the other. Its deadly nature derives from the fact that shotguns are designed to shoot shells containing "pellets." However, each of these so-called pellets can be roughly the equivalent of handgun bullet, and each shell can hold up to nine of these bullets. Thus, with one trigger pull, a shooter can unload nine handgun bullets all at once. That's faster than any legal rifle — and prohibited machine gun, as well. These guns were not illegal under the assault-weapons ban, nor are they now.
Finally, the Glock .40-caliber handgun is a mainstay among law enforcement agencies and civilians alike. This gun, too, has always been legal, although many states restrict handguns generally in some way less than a total ban. Under the assault-weapons ban, this gun could only be sold new with a low-capacity magazine (10 rounds), but, again, preban high-capacity magazines, if available, were legal. Now that the assault-weapons ban has expired, they typically are sold with magazines holding 17 rounds. In addition, longer magazines, which extend past the body of the weapon, are available — although at some point they tend to malfunction similarly to, but less dramatically than, drum magazines.
The difficulty with this issue is that most gun-restriction laws simply shift purchasers to different lethal weapons — with the most notable exception of limiting magazine size, which does affect overall lethality. Many gun-control advocates point to the fact that fewer weapons characterized as assault weapons were used in crimes during the assault-weapons ban. This fact alone, however, is not particularly informative.
Take automobiles as an example. Unlike guns, cars are not designed to be deadly — needless to say — but they are involved in the death of almost as many Americans in one year than were killed in the whole Vietnam War. If we were to prohibit the manufacture and sale of blue Honda Accords (an excellent vehicle, no doubt), then there would almost inevitably be a reduction in the number of deaths caused by blue Accords. The relevant question, however, is whether automobile deaths overall would go down — which under this limited example, they seemingly would not.
By analogy, the relevant question regarding gun-control legislation is whether it makes people safer or just shifts the allocation of resources within a marketplace.
Robert Steinbuch is a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law.
Screw the “mayhem” and “crime” or “violence” Bullsh#t.
The purpose of the guns in the 2nd is to enable the citizen to resist a TYRRANICAL government.
PERIOD.
As ‘government’ gets more and more tyrranical, NATURALLY they want to get rid of any and all guns that they can. Hence, ‘regulation’ and ‘registration’ garbage.
Lock and load, boys and girls.
Better put: Restricting firearm magazine capacity has about as much change of decreasing mayhem as decreasing the capacity of fountain sodas in New York City would decrease obesity.
Actually not a bad article.
He acknowledges that some blanket themselves in the Second, but does not say it is inappropriate for them to do so. His point is that the position for those on the two ends of the gun control spectrum are simple and consistent.
More or less by definition, any position between those two extremes will be complex and not completely logical and consistent.
Most of the article is a generally accurate discussion of why bans on certain categories of guns are completely ineffective at accomplishing their stated goals. He does not comment on whether he agrees with those goals or not.
A good semi-auto shotgun is a good deal more lethal than the 870, or any other pump. Something like twice the rate of fire
Given how long it takes to reload, it really wasn’t a very good choice for the mission. If it had been his only weapon, its likely he wouldn’t have been able to get off more than the original load.
He has a point. Regulating specific types of guns only shifts the market to other, equally lethal alternatives. One could ban magazines with more than 10 rounds, but what is to keep the shooter from bringing 10 magazines? or 10 guns? (which can be quickly reloaded with another magazine, or more guns)
The point here is that you cannot regulate evil, and guns are in and of themselves not good or evil; they are amoral. Inanimate objects that can be made tools for the objectives of the user, just as any other tool. They can be used by evil to do evil, or by good to defend against evil.
Making us defenseless against evil is not the answer.
Let me correct the author:
By analogy, the relevant question regarding gun-control legislation is whether the words "shall not be infringed" in the Second Amendment have any meaning whatever.
If the Founders had wished to empower the government to legislate any gun law which had a positive impact on safety, they could easily have said so. The Founders understood that the power of a tyrannical government can only be checked by an armed populace. Their intention was to remove the temptation to disarm through legislation.
Our Founders would be disappointed that despite the Second Amendment, and despite the fact that every U.S. soldier and every L.A. Sheriff sergeant's car contains an automatic rifle, the general population must compete for a limited number of such guns, paying many tens of thousands of dollars if they are even allowed to possess them.
Thank you. I needed that. I don't like the smell of this article, especially things like "The AR-15 is the civilian version of the well-known military M-16" which is a damned lie, when the black rifle is designed for militaryuse, the semiautomatic progenitor of the M-16.
It has the pistol grip, bayonet stud, and flash suppressor. These features make it military, and were targeted by sly pols to denominate it as an "assault weapon," so as to cause idiots to confuse it with the M16. They treat the SKS the same way to confuse that profile with the AK47.
He also says:
"Many gun-control advocates point to the fact that fewer weapons characterized as assault weapons were used in crimes during the assault-weapons ban."
The fact? Show me "the fact" with statistics. In God we trust, everyone else is to bring data, not dress an opinion as "fact," the way he has done with "civilian version."
And "Avswers are complex." Yeah? As you point out, perhaps his dictionary does not contain the verb "infringe," which is absolutely crystal clear in its intent and application.
What he is doing here is a tried and true lawyeresque trick of introducing a little doubt, and magnifying that toehold into utter disbelief with a gullible electorate.
I submit boldly, as you intimate succinctly, that this author's goal is to build a case of a commercial "fair use" from which he will attack the Second Amendment, whose principle is so glaringly obvious that only a fool or Satan, that Great Liar and Father of Falsehood, would contest it, as the serpent deceived Eve.
The author's dead giveaway as to what his goal here is, is in his opening sentence. And the goal he seeks is also transparent in his last conclusion, which undermines the cause for the RIGHT TO KEEP AND BEAR ARMS being explicitly and NOT complicated as enjoined in our beloved Constitution.
Anyone confused by this author's (mis)use of factual information to build a lie? Am I just another Eve, asking, nay, begging to be deceived? What he wants to establish is that if there is no market demand for such an arm (AR15) (due to political pressure, public schoolification, and media inflation of random tragedies), then delegalization of gun ownership will be appropriate. (Let's shift the market so they work out their problems with pugil sticks, not guns.) Ask Zimmerman what a Glock .40 means against a concrete sidewalk.
(This is why, state by state, we now have to go back and fight to have this right reinstituted where is has been blotted out as a right, not just as a privilege. Even though gaining freedom, it still is viewed as a reluctantly granted privilege, rather than as a fundamental right, only one step down from the voice and the pen/internet.)
Doesn't the tone this article simply reek of hate for The Truth?
You make valid points. However, I think the article is aimed at people who consider the Constitution as a quaint bit of paper, instead of the highest law of the land.
He tells them that their cost/benefit analyisis is farcical.
I appreciate your analysis. It needed to be said.
Oh, yes, that is so. And please do not think that at all ever I would include you with that crowd.
I am continually grateful for your labors in ferreting out such articles and bringing them to the attention of others who, at some time in their lives, have sworn:
I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
Since I have never been unsworn subsequent to my Honorable Discharge as of 31 Oct 1962, I figure that still holds, when called. I have not forgotten my serial number nor the 'So help me God' part, for which I suspect I will be accountable by The Great Judge, since He will, and does help those who are obedient in this oath.
A salute to you on this post -- (snap)
Thank you very much sir, it is appreciated.
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