The Democrats’ likely failure to reinstate the assault-weapons ban is a blow to gun-control efforts, writes Adam Winkler. And that’s not because the ban was effective or necessary
Sen.
Harry Reid announced Tuesday that he would not be including Sen. Dianne
Feinstein’s proposal to ban the sale of assault weapons in the package
of gun legislation he’ll bring to the floor of the Senate. This all but
ends gun-control advocates’ hopes of reinstating the ban on assault
weapons, although Feinstein can offer it as an amendment once Reid’s
package is being debated. Reid, however, says there aren’t anywhere near
the 51 votes for passage, much less the 60 needed to overcome an
expected filibuster.
Gun-control advocates will no doubt mourn the demise of Feinstein’s assault-weapons proposal. Yet, they may soon be asking if the proposal lived too long—just long enough to dash hopes of enacting any meaningful reform.
Gun-control advocates will no doubt mourn the demise of Feinstein’s assault-weapons proposal. Yet, they may soon be asking if the proposal lived too long—just long enough to dash hopes of enacting any meaningful reform.
Banning
the sale of assault weapons was a bad idea from the start. These guns
may be scary looking, but they are rarely used in criminal activity.
While involved in a handful of high-profile mass shootings, including in
Newtown, Connecticut, and Aurora, Colorado, these weapons aren’t a
significant contributor to gun violence overall. Only a fraction of
gun-related homicides every year are attributed to rifles of any kind;
assault rifles make up a fraction of a fraction. And anyone looking to
do maximum damage, like a deranged mass killer, can easily find other
guns just as deadly. So even if the assault-weapons ban were enacted, it
would not have a major impact on America’s daily death toll from guns.
Assault
weapons are often misunderstood. Although many people mistakenly
believe that these guns have automatic fire, that’s wrong. They aren’t
machine guns, which are already heavily restricted and illegal to sell
in most cases. The weapons primarily covered by Feinstein’s proposal,
largely variants of the AR-15, fire only one round for each pull of the
trigger. They are powerful—they are, after all rifles—but fire smaller
rounds than many game-hunting rifles, which wouldn’t be affected by the
assault-weapons ban.
One
reason these guns are misunderstood is that there’s no set definition
of “assault weapon.” The guns targeted by Feinstein’s proposal were
mainly semiautomatic rifles with detachable magazines and one or more
military-style characteristics, like a pistol grip or a folding butt
stock. This wasn’t the same definition used by the prior federal law
enacted in the Clinton years. That ban required two or more
military-style features. One thing the two laws would have had in
common, though, is the ability to be easily skirted by gun
manufacturers. Just as with the old ban, gun makers would just make the
exact same guns, only without the military characteristics. And sell
them by the millions.
That’s
what many gun-control advocates failed to realize about the
assault-weapons ban: the same gun, with the same rate of fire, the same
bullets, and the same detachable magazine, would be perfectly lawful.
It’s as if the problem with “assault weapons” wasn’t their lethality but
their pistol grips.
Gun-control advocates deserve a share of the blame for focusing on a symbolic proposal with little prospect of passage.
Even if enacted, Feinstein’s proposal would be the most likely of all the major gun reforms being considered in Washington today to be overturned on Second Amendment grounds. The Supreme Court has held that the Second Amendment protects arms that are “in common use” for lawful purposes, like self-defense. There seems little doubt that assault weapons are in common use, given the millions of them in circulation. Of course, the courts might still have upheld the ban; a federal appeals court recently said that outlawing this one category of firearm didn’t substantially interfere with anyone’s self-defense. Strangely, the best thing an assault-weapons ban would have going for it is its loopholes. Because you could buy the exact same gun without the pistol grip, you weren’t really denied the right to have a semiautomatic rifle to defend yourself.
There
was one certain impact of proposing to ban the sale of assault weapons:
it was guaranteed to stir gun-rights proponents to action. Ever since
Obama was elected, they’ve been claiming that he wanted to ban guns.
Gun-control advocates mocked this claim—then proposed to ban a gun. Not
only that, the gun they were trying to ban happened to be the most
popular rifle in America. It’s one thing to ban machine guns, which few
law-abiding people ever wanted or used. It’s another thing entirely to
ban a gun that millions of American gun enthusiasts love to shoot.
Ironically,
the people who may be saddest to see Feinstein’s proposal go down are
the gun-rights hardliners. They knew all along that the ban was riddled
with loopholes, was easy to evade, and had little potential to impact
crime. That’s in part why they wanted to focus on this proposal, rather
than on background checks or limits on high-capacity magazines. Of
course, the National Rifle Association leaders continue to denounce
those other proposals. Yet it’s harder for them to make a persuasive
public case against background checks—which primarily burden criminals
and the mentally ill trying to buy guns—or magazine restrictions, which,
in allowing people to have 10 rounds plus readily available,
already-loaded replacement magazines, didn’t interfere with
self-defense.
(A
ban on high-capacity magazines was expected to be part of Feinstein’s
proposal. While the old assault-weapons ban also included a limit on the
size of magazines, the two ideas are distinct. In fact, the vast
majority of guns with high-capacity magazines are not assault weapons,
including the typical side arm worn by police. Reid has not announced
whether a magazine restriction will be included in his package of
reforms.)
Had
President Obama and Democratic senators focused all their energy and
political capital on background checks, perhaps we’d be closer to
enacting meaningful reform. There’s no doubt that the time spent on
assault weapons, both in Senate committees and in public debate, wasn’t
well invested. Indeed, long before Vice President Biden’s
recommendations were issued in January, it was already clear that an
assault-weapons ban had no chance of passing Congress. Now, three months
after Newtown, the momentum for gun control has slowed, and the
prospects for any reform’s enactment grow dim. That’s mainly due to the
intransigence of the NRA and its allies. Yet gun-control advocates
deserve a share of the blame for focusing on a symbolic proposal with
little prospect of passage.
The
assault-weapons ban may be effectively dead. The question now may be
how much damage the proposal has done already to the gun-reform
movement.
* UCLA constitutional law professor Adam Winkler -- who, by the way, supported the D.C. handgun ban in an amicus brief in the 2008 Heller case but argued against Chicago in the 2009 McDonald one.
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