The Folly of an "Assault Weapons" Ban - Part 2

Monday, September 15, 2008

Part 1 explained that the "assault weapons" ban that expired in 2004 applied only to certain semiautomatic firearms, commonly used for self-defense and sporting purposes. The clarification was necessary, because the ban supporters either did not understand the differences between semiautomatic firearms equipped with certain features and fully automatic weapons or, more likely, the ban supporters cynically manipulated people's unfounded fears of "scary looking" guns for political purposes.

The weapons previously affected by the expired ban are no more powerful than semiautomatic pistols and rifles used for self-defense, hunting, and competition every day. In fact, some supposed "assault weapons" are less powerful than many hunting rifles. A bayonet mount, folding stock, or flash suppressor does not provide any criminal with an advantage.

Moreover, these types of weapons are used in very few crimes, much fewer than crimes committed with other weapons, knives, and fists. Gun control advocates have been unable to demonstrate preferences by criminals for any particular firearms, whether "assault weapons" or "Saturday night specials" are the villains du jour. The only real distinguishing feature between firearms used for self-defense, sporting or competitive purposes and those used in crime is that criminals do not usually feel the need to comply with gun control laws, while the majority of Americans do.

Attempts to restrict gun ownership based on arbitrary criteria and irrationality are part of a scheme to gradually erode your rights until law abiding citizens are powerless against threats of all types. Now that Americans have a clear, individual, Constitutional right to keep and bear arms under Heller, we must protect those rights from attacks brought by those only interested in increasing their political power.

Goodbye Kitty - Part 1

Tuesday, September 9, 2008

Even though Sarah Palin is adored by many gun rights groups, she is not my political cup of tea at all. It seems that many of her admirers are one issue voters, and I respect their views, but I am not a one issue voter. (Yes, sooner or later I will write about other political issues.) With all the bikini and gun photoshopping of Palin floating around the internet, I feel bad for her. So I would like to address one of her pet causes. And yes, perform a public educational service.

One hears the terms "assault weapon," "AK-47" and "Uzi" thrown about quite a bit, usually with no knowledge of what these terms mean. In its technical sense, "assault weapon" refers to a weapon used in military assault operations. The key features of such weapons are that they are capable of fully automatic fire and lightweight. "Fully automatic" (a "machine gun") means that a weapon automatically extracts and ejects the fired cartridge case and loads the next new one, and that it will continue to load and fire ammunition until the trigger is released or the ammunition is gone. Semi-automatic firearms also extract and eject the fired case and load the next new one, but they fire only one shot per trigger pull.

The manufacture of new fully automatic machine guns for civilian purchase was effectively outlawed by part of the Firearm Owners' Protection Act of 1986. Machine guns properly registered prior to that 1986 Act are still legal, but they command a premium because of the small number available. Machine guns and submachine guns such as the Uzi, whether manufactured before or after the 1986 Act, are not the main subject of this post.

So why did I bother with this tedious explanation? Because when most people see the type of rifle above (even in pink), or hear the words "assault weapon," or "AK-47," they think of the last fully automatic rifle fire scene they saw at the movies. All of the gun control controversy today focuses on semi-automatic firearms as defined above. When I discuss a particular weapon below as an "assault weapon" in the non-technical, political sense of the word, no matter what it looks like, it is not in any way capable of "spraying" shots in a fully automatic fashion, unless it has been illegally modified. Illegal modification has also been addressed long ago, and is not part of any ongoing gun control controversy.

The AK-47 is a Soviet manufactured 7.62 mm automatic assault rifle (different from an assault weapon in very technical ways that would make this post even longer.) As discussed above, new fully automatic firearms like these are not legal for civilians to possess or transfer, except for very limited circumstances not at issue in current gun control debate.

In political discourse, "AK-47" usually means a semi-automatic rifle with a military appearance. The Federal Assault Weapons Ban passed in 1994 and expired in 2004. It prohibited the sale to civilians of some semi-automatic firearms that had certain features, such as a folding stock, a conspicuous pistol grip, and a flash suppressor, among others. It also banned the manufacture of magazines holding over ten rounds as "high capacity."

Tomorrow in Part 2 - Why the Federal Assault Weapons Ban was merely cosmetic and should not be reinstituted.

Heller, High Emotions, and Consequences

Thursday, September 4, 2008

Controversy surrounding gun control issues seems to have dissipated somewhat following the demonstrated effectiveness of shall issue concealed carry laws and many states' adoption of the same. However, Second Amendment supporters still have a long way to go.

Even after SCOTUS recognized an individual right to keep and bear arms in District of Columbia v. Heller, 128 S. Ct. 2783, 2821-22 (2008), D.C. denied Dick Heller's attempt to register a semiautomatic .45, because the city's law defines any gun that loads from the bottom or is capable of holding more than 12 rounds at a time as a "machine gun." Mr. Heller later successfully registered a single-action Colt .22 revolver. Because the Heller challenge was narrowly tailored to address only the most onerous portions of the city's ban (and thus maximize the chances for success), a host of unreasonable restrictions remain. The meaning of those restrictions is unclear, but some have opined that they effectively prevent any use of a handgun for home self-defense. The Heller plaintiffs recently filed a complaint for Declaratory Judgment, Injunctive Relief, and Writ of Mandamus to force the city to comply with the SCOTUS ruling.

What's behind all of this? I may be a little biased, but I'm not a die-hard Scalia fan, and the Heller opinion seems clear to me. My position is that some people on both sides of the issue are caught up in too much emotion.

In my private law practice, I advised employers following Minnesota's adoption of its shall issue concealed carry law. That law correctly allows private employers and other private property owners the option to ban concealed firearms from their premises provided a particular warning process is implemented. Private property owners have the right to take into consideration their potential civil liability for acts committed on their premises by a permit holder (even though the data suggest that permit holders as a group are more law-abiding than the general population). But I propose that employers should also consider the reverse: What liability may result by an employer's denial of personal protection to a permit holder employee? The legal theory may be novel, but the factual scenario is not. Imagine a female employee who is working late and is assaulted on her way through the company parking lot because the employer prohibited her from exercising her concealed carry rights. Is this theory any more unusual than class action suits against firearms manufacturers and trans-fat pushing fast-food restaurants? I don't think so. But few people seem to find it convincing.

I think there is often too much emotion involved on both sides of the issue. Heller held that the Second Amendment confers an individual right to keep and bear weapons of the sort "in common use at the time" and allows the prohibition of "dangerous and unusual weapons." Of course, these two phrases leave a lot to future interpretation, but in general I agree with this approach. Some extreme gun-rights supporters would not. Similarly, gun control advocates sometimes seem to have a blind spot that prevents them from even considering the usefulness of a firearm as a tool, even when it could affect their own bottom line. The power of these tools causes some people to be too emotional in their analyses of the issues.

People smarter than me discuss Heller in depth here and here.

Your thoughts?