Going Off the Rails With the Second Amendment. Part 6: It’s Time to Ban Assault Weapons

Fargo teen's graduation photo sporting gun get rejected. Story Minneapolis Star Tribune. Photo: Melissa Baasch.

Fargo teen’s graduation photo sporting gun. Story Minneapolis Star Tribune. Photo: Melissa Baasch.

It would be nice to say that two horrific and nearly back to back mass shootings the latest mass shooting in Orlando Florida* in the United States recently shattered a national sense of complacency but alas, these shootings have become all too common.

Back in January of 2013 I wrote a five part series on the Second Amendment and gun violence in the United States. It was supposed to be a six part series at the time but being the primary “boss of me” here at Thoughtful Bastards I decided to wave off on the sixth installment. I sensed some fatigue among my readers at the time and frankly, I knew there would plenty of opportunity in the future to write this installment. Sadly, one can always be certain that another mass shooting will take place in the United States if one is waiting for a relevant context to discuss gun control.  If you want to review the entire original series you can visit it here.

This blog is longer than I like my blogs to be, but it’s a complex issue and I can’t figure out how to neatly break it up for several reasons. I’ve written several other pieces that support and dovetail with this writing, but I think it would be disruptive for the reader to have to look to flip back and forth between this article and others, I think a single (an albeit long) stand alone piece rather than collection links is an easier read in the long run. Besides, as long as this is, it’s shorter than all the related blogs combined. Consequently I’ve elected to include short summaries here, with links to the more in depth blogs.

Yet another factor contributing to the length of blog is subject matter itself. The whole issue of gun control and the arguments that revolve around are difficult summarize. For me, this not new territory, I’ve been to this dance before and basic criticisms and arguments tend to arise with all the predictability of the sun’s orbit so I’ve decided to anticipate and respond to the more predictable criticisms rather than battle them out in comments. So without further ado.

Let me start briefly summarize the two most important findings from the original series:

First, it’s important to understand that the NRA and gun manufacturers have had great success in the last two decades creating the false impression that the Second Amendment effectively prevents any serious measures of gun control. This false impression is based on a legal fiction that the Second Amend grants individuals the right to own and use almost any of kind of gun. Unfortunately this legal fiction exists not only in the minds of many Americans but also as a political reality of sorts. Quoting myself:

“The short story regarding the Second Amendment is that it was NOT meant to bestow the individual right to own a gun in the United States. The Second Amendment was about creating and maintaining State Militias and equipping them for the common defense. Primarily the Amendment was about reassuring slave states that Federal government wouldn’t interfere with their ability to suppress slave rebellions. Over the centuries the historical and legal realities of the Second Amendment have diverged. Contrary to the historical reality, the legal reality is that the Second Amendment currently guarantees some individual rights to own guns.  However the exact nature of those rights and what kinds of guns they may apply to remains murky.”

Looking beyond the Second Amendment per se, the sheer number guns in the United State creates a plethora of civilian carnage on a scale not found anywhere else in the world. The most unique and deadly characteristics of the US gun culture is mass murder typically carried out with assault weapons, i.e. weapons who’s primary design was for use in wartime combat. You can read my extensive review of mass killings here. In summary, it’s not the just number of guns, but the type of guns Americans  possess that contributes to the carnage.

It’s important to understand these critical findings because they provide the foundation for effective gun control. The fact is that we’ve long since passed the point where we should have placed an effective ban of some kind on assault weapons in the United State. We did have an assault rifle ban of sorts on the books from 1994-2004 but it was riddled with loopholes and consequently did little to slow down ownership or prevent mass killings. Although one should note that since the US Congress let that limited ban “sunset” in 2004 we have seen a nearly explosive increase in mass shootings and casualties. Even a limited ban can produce significant results.

Before discussing the ban itself I feel the need to point out that assault weapons are not the only deadly problem that arise from our gun culture in the United States. Any discussion about gun control needs to start with the basic realization that guns are in fact incredibly dangerous weapons. If that proposition looks weird in print that’s only because groups like the NRA and the firearm manufacturers have largely succeeded with an incredibly effective campaign that obscures the inherently dangerous nature of guns. Millions of Americans would tell us that guns are actually “perfectly safe” as long as users know what they’re doing. Recent expansions of “Castle Doctrines” like the one that legalized the murder of Trayvon Martin by George Zimmerman in 2012 and the explosion of conceal and carry permits are all based on the premise that guns are inherently safe.

The truth is that guns by they’re very essence are incredibly dangerous and specifically designed to deliver instantaneous and irrevocable lethal force and they do so at an alarming rate. If guns were any other product most of them would have been pulled off the shelves long ago much the same way Lawn Darts were.

The inherently dangerous nature of guns cannot be eliminated with training or familiarity. Whether it be cops accidently shooting themselves in classrooms while teaching gun safety, or lifelong hunters dropping their rifles and shooting themselves in their deer stands, every year thousands of Americans accidently shoot themselves or someone else and hundreds are killed. Guns are dangerous, period. The chances of someone in your home dying a violent death increase dramatically if there’s a gun in the home. Over 80,000 people a year are killed or injured with guns in the US. So far this year 43 toddlers have shot themselves or someone else in the United States, this is a unique American phenomena. If we step back from accidents and look at homicides the public danger of guns multiplies dramatically. According to the CDC 500 people were killed with guns by accident in 2013 while over 11,000 were murdered.

Now the fact that guns are dangerous doesn’t mean people shouldn’t be allowed to have them, lots of things are dangerous, but the notion that guns are “safe” simply has to go away. We cannot begin a rational discussion about guns from an incoherent starting point. We need start with common sense acknowledgement that guns are dangerous. Beyond that we need recognize the fact that some guns are killing far more people in mass shootings than others, and should be banned.

Why Assault Weapons?

If all guns are dangerous you ask, why am I’m focusing on assault weapons? As I pointed out in Part Five of my previous installments the massive presence of assault weapons in civilian hands has led to a dramatic public safety crises that is unique to this country.  The US has at least five times more mass shooting than any other country in the world and accounts for 31% of the worlds mass shootings despite only holding 5.1% of the world’s population. (Wall Street Journal, Oct. 3 2015) Between 1982 and 2012 103 of 142 guns used in those mass shootings were assault weapons (Mother Jones, Feb. 27 2013).

While high numbers of accidental shootings and “ordinary” homicides are certainly legitimate problems, those problems are actually far more complex than mass shootings requiring more complex responses.  Conversely, mass shooting can be attacked with a relatively simple ban of a specific class of guns in the short term.  Other strategies could be developed to reduce other types of gun violence, deaths, and injuries, in the longer term.

What’s An Assault Weapon?

Time to get down to it: Any ban of anything requires a working definition of the thing to banned, and a workable definition of: “Assault Weapons” is critical. One can quickly become mired in miasma of minutiae when attempting to define assault weapons. In fact bogging people down in minutiae has been a favored and successful gun lobby tactic for decades. It’s funny, here we have the most recognizable gun designs in the history of firearms and for some reason gun “experts” can’t recognize an assault weapon when they see one? If you delve into the business of identifying an “assault rifle” for instance online you find a dizzying collection of websites (both pro and anti- gun control groups) discussing everything from flash suppressors, to pistol grips, to magazine capacity. Frankly, I think that’s all a waste of time and that’s exactly what the gun lobby wants us to do, waste our time trying to decide whether or not “assault weapons” fit their latest iterations of mostly cosmetic details.

Assault weapon enthusiasts know that if they limit the definition of an assault weapon to for instance, anything identical to whatever specifications the Pentagon is currently using to purchase guns for the military, no ban can possibly be effective. If we’re serious about creating effective assault weapon bans, we can’t let those who oppose bans define the nature of assault weapons. We need a definition that works, and is enforceable.

My definition is broader than those typically proposed. You notice I’ve been referring to assault “weapons” rather than rifles for instance, that’s because I include semi-automatic pistols, .50 Caliber rifles (other than mussel loaders), and tactical shotguns. So what definition brings all these guns under one umbrella? To wit:

“For the purposes of this ban an assault weapon is any firearm resembling a weapon designed for military combat after the year 1890”

I say keep it simple. The fact is that the primary characteristic that makes these guns so lethal has nothing to do with individual features like pistol grips or large capacity magazines, the primary feature is that they are/were designed to take into combat and kill enemy soldiers in the greatest numbers with the greatest possible efficiency at the time. These guns were not designed for hunting, or personal defense, or target shooting, they are designed for combat and removing a selector switch here or there doesn’t change that fundamental essence.

Individual features gun enthusiasts like to argue about are actually by and large irrelevant. For instance historically a “full automatic” capability has not been a universal requirement for military assault weapons. The Belgian FN FAL (L1A1 battle rifle) is deployed by militaries all over the world, and was the standard combat weapon throughout NATO for over a decade. Some versions of the L1A1 had three round burst options, but most were limited to single shots. Some M-1 carbines had full auto capacity, some did not. Likewise the US M-14 originally had a full automatic option but the gun was so unwieldly in full automatic mode troops were ordered not to use it in Viet Nam and some cases the switches were actually disabled. Even the M16 was frequently limited to semi-auto rather than full auto operation in practice. With a rate of fire of 800 rounds per minute one could almost empty an M-16 clip before getting a finger off the trigger. Unless you want your troops to run out of ammo in the first two minutes of a firefight you don’t let them expend rounds like that.

Its important to remember that our purpose is not to buy weapons for our troops, we’re classifying to-be-banned military style weapons that have few if any civilian applications.

For instance many people may be surprised to learn that the majority if AR-15 (M-16) rifles with the military 5.56mm (.223) chambers (The vast majority of such weapons being sold in the US) can’t actually be used to hunt anything much larger than a wild boar, they’re actually limited for the most part to small game that you could shoot way way way cheaper with a .22. You wouldn’t want to shoot something like a rabbit with AR-15 anyways unless you like to see small animals explode. Likewise while the AK-47 (AK-74) variant’s fire a legal caliber for large game (7.62), these guns are a poor choice for hunting. AK-74s  are not known for their accuracy, they’re cumbersome to carry around in the woods, and big game hunters usually want to kill an animal with a single shot if they can (A bullet ridden hide is not what most hunters aspire to). There’s no practical hunting advantage of a riffle that can fire 20-30 rounds per minute at moose or elk whether it’s a AK-74 or a AR-15 firing a larger caliber round. This is why you see few if any deer hunters carrying assault rifles in the woods and fields of MN, or any other state during hunting season.

Ironically assault weapons are also a poor choice for self or home defense. Any gun enthusiast worth their salt will tell you a decent assault rifle (they may call it a “sport” rifle) ought to be secured unloaded in a gun safe because they’re prime targets for home burglary. An unloaded AR-15 locked up in a safe isn’t exactly going to be at your finger-tips if a “bad guy” bursts through the door and invades your house. Even if you could get to your assault rifle in an emergency such weapons are not well suited for close quarter action like that inside a typical home. Of course one cannot conveniently carry a loaded assault rifle around in public or at work on a daily basis for obvious reasons. The practical effect of owning an assault rifle is to increase the odds of being burgled, aside from simply “having” one, there’s they’re very impractical and expensive guns.

A pistol of some kind would make the most sense for home or personal defense, but here again, a semi-automatic military weapon is the poorest choice.  In theory a semi-automatic pistol could be safer than a revolver for instance because it may require two steps to fire, you have to chamber a round AND disengage a safety. In reality thousands of people a year accidently shoot themselves and others with semi-automatic pistols because they don’t realize there’s a live round in the chamber. Everyone from toddlers to Police Chiefs and DEA weapons instructors ends up shooting themselves because they either failed to clear the chamber after firing or forgot they chambered a round in the first place. Did I mention… guns are dangerous?

Large capacity magazines are more likely to accommodate heroic fantasies than actual self defense scenarios. Any self defense scenario you encounter is likely to last a few moments and be over (one way or another) in short order. The odds of getting into prolonged gun battles with bad guys in your living room or on a street corner are practically nil.

Likewise tactical shotguns, and .50 caliber rifles have no real civilian applications. Hunters have been bringing down ducks and pheasants for decades without 20 round drum fed semi-automatic short barrel shotguns designed for close quarter combat. Nor do hunters need ( or use) a .50 caliber weapon first introduced as an anti-tank weapon by the Germans in WW-I… to hunt elk. Few if any hunters “engage” targets at 2,000 yards (over a mile away).

The point is a ban on these weapons isn’t going to have any kind of detrimental effect on hunting or self -defense in the United States. So even if you’re worried about some ancient right to hunt or defend yourself you’ll have plenty of options, and those other options are actually better suited for hunting and self-defense.

Just a quick note because I know someone will bring this up (they always do);  you can claim we need assault weapons in civilian hands as some kind of “check” against government oppression should the need arise but:

1) That is to admit that these are assault weapons that you in fact intend to deploy in combat against the government if need be. You can’t have it both ways, deny that these are military combat weapons and then tell us you need to them to combat the military should our “freedom” ever be threatened by the government.

2) Democracy and the rule of law protect our freedoms, not guns. Not once in over 200 years has our democracy been rescued by gun wielding civilian freedom fighters. In fact, our constitution specifically classifies gun wielding civilians who attack the government as treason. Do not delude yourself that you and the gun in your closet are, have, or ever will, defend our liberties. There is NOTHING in the US Constitution, or in any court ruling to support the idea that armed insurrection is some kind of “fail safe” for our democracy. The idea that the guy walking around Walmart with a AR-15 slung around his shoulder is protecting our “liberty” is simply an idiotic fantasy.

The Ban Itself

What does the ban itself look like? Here it is:

“The sale or purchase of assault weapons (as defined above) by anyone not legally authorized to take part in such transactions in the United States of America is hereby prohibited.”

Who is “authorized” to buy or sell assault weapons? 1) The US government and State and Local law enforcement agencies. 2) Gun collectors who are licensed yearly, register their complete collections, and limited to no more than two identical examples of the same weapon. Collections need to be securely stored and cannot be transported without permit. 3) Registered gun clubs. The primary appeal of these guns is that they’re fun to shoot, there’s no denying that, so let people shoot in relatively safe and secure environments under some semblance of supervision. Any gun club with assault weapons would need to secure those weapons, keep them onsite at all times, and obtain an annual permit.

How Does This Ban Actually Work?    

First you’ll notice that sales are banned, not ownership. That’s because Millions of Americans have thus far legally purchased assault weapons and I think criminalizing ownership is just too problematic. Criminalization of possession creates a whole new list of issues like whether or not or how to confiscate guns, and I just don’t think we should go there. A ban would almost certainly be challenged in court and I think we’d do well to avoid certain search and seizure issues. What we would do is create a federal buy-back program for those who finally realize how silly it is to have these guns and want to get rid of them. If I had my way we’d pay for it out of the defense budget because I really do think this is a national defense issue.

As I’ve already outlined, this ban is does not depend on definitions comprised of a specific and detailed description of an assault weapon, but rather a straightforward recognition of basic similarities. Recognition would fall on a group of people who would simply make a judgment, a jury of sorts that would determine the status of individual weapons. We already have models for this, the FDA, FCC, SEC, for instance have commissions that enforce legislation. One advantage to commissions is they provide a framework of due process thereby rendering the process Constitutional, you could build an appeal process of some kind into this, but you’d want to set a high bar so gun manufactures couldn’t tie up the process indefinitely with frivolous challenges (something they will surely do if they can). And of course you’d come out of the gate a predetermined list of assault weapons but you wouldn’t be limited to that list.

How does the panel recognize an assault weapon when they see it? It’s actually very simple, it requires no magnifying glasses or list of components, all you really need to do is look at weapons designed for military use, and then look at the gun in question, frankly, anyone could do it…. Look:

 

Photo: Wiki Commons

Many historians trace the modern assault rifle to this gun, the WW-II German Sturmgewehr 44 or StG 44. Just look at it, this weapon was designed for combat use by the German Army. Photo: Wiki Commons

Does an assault rifle have to have a pistol grip and a big magazine? No.

Here’s a Chinese type 56 designed for combat use by the Chinese Army (And issued to the Viet Cong) Photo Wiki Commons

Here’s a Chinese type 56 designed for combat use by the Chinese Army (And issued to the Viet Cong) Photo Wiki Commons

The US M-14 didn’t have a pistol grip either:

The M-14 started out as an assault rifle but transitioned into a sniper rifle used the US military for decades. DoD photo by Staff Sgt. Charles B. Johnson, U.S. Army. (Released)

The M-14 started out as an assault rifle but transitioned into a sniper rifle used by the US military for decades. DoD photo by Staff Sgt. Charles B. Johnson, U.S. Army. (Released)

Does an assault rifle have to have a “full-automatic” option? No.

Here’s an L1A1 Belgian Assault Rifle issued by military's all over the world, semi-automatic single shot. Photo Wiki commons

Here’s an L1A1 Belgian Assault Rifle issued by military’s all over the world,  it’s  a semi-automatic. Photo Wiki commons

What about pistols? Here’s a Colt 1911 semi-automatic pistol developed for the US Army next to a Glock

Photo: Wiki Commons

Photo: Wiki Commons

Photo: Wiki Commons

Photo: Wiki Commons

 

 

 

 

 

 

 

 

Just in case you think you change the style a little here’s a Colt next to a Lugar:

Photo: Wiki Commons

Photo: Wiki Commons

Here’s a .50 caliber rifle, basically an assault rifle with a 50 caliber chamber:

Photo: Wiki Commons

Photo: Wiki Commons

You could make a bolt action version but that would be derived from the German Mauser T-Gewehr

Here’s a tactical shotgun:

Photo: Wiki Commons

Photo: Wiki Commons

And of course we have the ubiquitous AR-15 (M-16) and current military issue M-4

Photo: Wiki Commons

Photo: Wiki Commons

The idea that a manufacturer can produce any of these weapons in a different caliber, without a bayonet mount, or with a different selector switch, or stock, or whatever, and call it a completely different weapon is obviously ridiculous, so we just don’t go there. Furthermore it doesn’t matter whether it’s a carbine, or a rifle, side arm, or shotgun.  Nor does it matter whether or not it’s a “new” design. If it’s a gun that looks like an assault weapon, it’s an assault weapon.  Our definition doesn’t require that a proposed civilian model be “identical” to a military version, just that its basic design be derived from a military weapon.  That derivation is determined by simple observation, not a list of components. If you start seeing “bull pup” designs in the gun shops, you’re looking at an assault weapon, this weapon was designed for military use, not plinking squirrels:

Styer AUG A1 508mm

Bull Pup design assault “Carbine”. Photo: Wiki Commons

These guns are distinctive and their origins are not disputed. No gun derived from any of these designs is difficult to recognize.

Even if (and it wouldn’t surprise me if they did) a manufacturer were to claim that any resemblance between their new gun and military assault weapon is purely coincidental, it doesn’t matter. Our ban doesn’t require that the commission prove “intent”, it just requires a visual comparison. So if you claim that your designers never saw a Bull Pup and came up with the design on their own by coincidence… that’s just an unfortunate coincidence for you and your company.  The commission doesn’t have to prove that designers looked a military weapon and derived their design from it, they simply look at your weapon.

Now a quick word about high capacity magazines; some people think that we could keep buying and selling these guns if we just limited the magazine size to 6 or 8 bullets. I’m not saying smaller magazines are a bad idea but we have to stop playing whack-a-mole. We have millions of these weapons in the hands of millions of Americans, probably billions of rounds of ammunition, and tens of millions of high capacity magazines or (clips) out there. No matter what kind of low capacity magazine you sell with an assault weapon, people will be able to get their hands on high capacity magazines one way or another for decades to come. And if we make manufacturers re-design guns to only accept new low capacity magazines, rest assured that work-arounds of a various kinds will be developed regardless of legality.

Why Now?

I think Americans might finally be getting fed up with these mass shootings and while support for bans waxes and wanes I think we can make a strong argument that people will support. I think the time might be ripe to cut though the NRA haze and have a intelligent and coherent discussion about gun regulations. Furthermore, I think the ban I’ve designed could get passed the current Supreme Court. It’s not an outright ban on all guns and it addresses a clear public health and security problem.

We might draw some confidence from the fact that the Supreme Court recently let stand an assault weapon ban in Highland Park Illinois.

In Columbia v. Heller the Justices wrote:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…”

The bases of the ban is that assault weapons fall into the category of “any weapon whatsoever” and constitute a public danger that far outweighs any potential benefits related to personal defense. Banning these weapons in no way renders citizens helpless in face of danger, yet the ban may prevent attacks on civilians by people armed with military weapons.

Another advantage to this kind of ban is that we don’t have to wait for Congress, such bans can be fashioned on a local basis and the Supreme Court has signaled a reluctance to strike such bans down.

The gun culture in the United States has created a huge monster that will haunt us for decades no matter what. I would offer no illusions that the ban I’m proposing would produce an immediate end to mass shootings, millions of these weapons are already out there and will be for decades even with a ban. The fact remains that until we fundamentally shift our focus and national discussion from dystopic fantasies that revolve around zombie apocalypses and social disintegration the carnage will continue and accelerate. It’s time to put gun lobby nonsense aside and realize that we have options, we’re not helpless, we CAN actually DO something.

*Note: This Article was originally posted in December of 2015 and has been updated in light of the June 12th, 2016 massacre in Orlando FL.

 

 

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3 Responses to Going Off the Rails With the Second Amendment. Part 6: It’s Time to Ban Assault Weapons

  1. Linda Thomas says:

    Excellent Paul so glad you shared

  2. charlie willfong says:

    While this is very well thought out, I don’t understand the logic behind it. We can own cars that have a top speed of over 150 miles per hour, we can own bladed weapons with blades longer than a foot, but we don’t necessarily need either. You can accidentally hurt or kill yourself with anything, so what makes firearms any different from any other specialized tool? Nothing. They are just efficient at punching holes in things, much like bows and cross bows. Firearms have safety rules, just like any other tool or device, and accidents happen when they are not followed. And you didn’t even acknowledge the little skirmish that happened about 150 years ago about some “gun wielding freedom fighters” leaving and forming their own government because they wanted to stand for what they believed in.

    • Paul Udstrand says:

      Charlie, the logic is quite simple, while cars and other things can kill people, assault weapons are specifically designed to kill people as efficiently as possible in combat. And while accidents certainly happen, murder is NOT an accident, nor are the mass shootings that are carried out with assault weapons. Guns are not comparable to any other tool or device, they deliver violent, lethal, instantaneous, irrevocable force and that’s specifically what they are designed to do. I don’t discuss the Civil War in this post because it’s irrelevant, modern assault weapons didn’t exist at that time.

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