Hamline Journal of Public Law and Policy
Fall, 1994 Current Public Law And Policy Issues, Page 199
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain
a back issue.
VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994: THE SEMI- AUTOMATIC "ASSAULT WEAPON" - THE LATEST VICTIM IN THIS COUNTRY'S WAR AGAINST CRIME
Kristine R. DeMay
Copyright © 1994 by the Hamline Journal of Public Law & Policy; Kristine R. DeMay
"To disarm the people (is) the best and most effectual way to enslave them." [1]
I. INTRODUCTION
We are presently living in a culture of violence. The crime rate in this country is reaching unprecedented levels. As reports of brutal murders, robberies and other violent crimes flood the headlines, politicians are reacting to public pleas for more effective crime control measures. [2] One crime control measure currently in debate is gun control. As a result of this lengthy, controversial and emotional argument, the battle over gun control has once again landed in the political crossfire. The latest casualty in this country's war against crime is the semiautomatic weapon, more commonly labeled "assault weapon." Public sentiment on gun control is sorted at best. Opponents of gun control are adamant that every individual has a constitutionally protected right to bear arms, which includes semiautomatic weapons.[3]
Proponents of gun control completely disagree and argue the Second Amendment does not afford such a liberal right. [4] Proponents of stricter gun laws also argue that semiautomatic guns are the cause of repeated [p.200] incidents of crime in this country and insist that a ban on firearms classified as assault weapons would restrict the number that reach the hands of criminals. Those who oppose gun control argue that restrictive gun laws, especially those calling for a complete ban on assault weapons, will not prevent criminals from obtaining these weapons. [5] Instead, opponents argue that gun restrictions impair and impede the ability of the average law-abiding citizen to obtain these firearms, a right clearly protected by the Second Amendment. [6]
At no time since the enactment of the Bill of Rights in 1791 has the push for stricter gun control been so severe as the current push for the ban on assault weapons. [7] Federal, state and local legislators have been forced to respond due to increasing crime rates and increased public opinion that it is the proliferation of assault weapons on our streets that has led to the escalation of crime. The federal response to this issue has been the enactment the Violent Crime Control and Law Enforcement Act of 1994 (Crime Bill) which serves to ban a number of assault weapons by both name and design. [8]
This article will discuss the controversial battle over gun control in this country with primary focus on the recent ban on certain types of assault weapons under the Crime Bill. This article will first address the arguments made by both gun control proponents and opponents. Second, it will address the constitutional arguments gun control issues raise. The discussion will then shift to the current ban on certain types of assault weapons, what assault weapons are, and why they have been banned. Finally, this article will address the effectiveness of the assault weapons ban and what result, if any, it will have on the overall crime rate.[p.201]
II. GUN CONTROL
A. Background
The debate over gun control dates back to the early 1920's. [9] The federal government involvement was limited to crime problems that were either national in scope or involved matters of law enforcement and crime control in areas subject exclusively to federal jurisdiction. [10]
The states were left with primary responsibility for crime prevention and control. [11] Nonetheless, federal gun control legislation began to appear as early as the 1930's. [12] Thereafter, major federal statutes regulating firearms were enacted in 1968 [13] and again in 1986. [14] These statutes were designed to "reduce the availability of guns to criminals, to disclose to the government the ownership of certain lethal guns, and to limit the mail order trade in firearms." [15]
Approximately 20,000 different gun control laws are currently in existence, ranging from federal to state to local. [16] With the ever-increasing jumble of gun laws and regulations in existence, the effectiveness of such laws becomes severely suspect. [17] As a result, the campaign has dramatically increased for comprehensive overriding federal gun control [p.202] legislation to regulate the approximately 200 million currently existing firearms. [18]
The extent and limits of federal involvement in crime control has led to a number of debates. At the center of this debate is the appropriate limits for federal control over the regulation of firearms. [19]
The most recent federal crime and gun control legislation at the forefront of this debate is the Crime Bill and its present ban on a variety of semiautomatic weapons.
One main point in this battle that is inescapable is that "underlying the gun control struggle is a fundamental division in our nation." [20] Rationalization, logic and reason have all but disappeared from this debate. Both sides of the debate support their arguments based on a fear. Gun control advocates fear for community safety, while opponents fear that the right to keep and bear arms is slipping away. "The intensity and passion on this issue suggests . . . we are experiencing a low-grade war going on between two alternative views of what America is and ought to be." [21] Presently, this war is being fought on a political battlefield by organizations and individuals with extremely different ideals of what, if any, individual gun ownership rights are afforded under the Second Amendment.
B. Arguments
1. Advocates of Gun Control
Gun control advocates believe that the only means of protecting the public is by establishing effective federal gun control legislation. [22] They argue, without the uniformity that federal law provides, states [p.203] with less stringent regulations will be a continuing source of guns in the more restrictive states.
Proponents of gun control argue that an effective way of reducing the crime rate is by restricting the amount of guns on the streets. [23] These advocates of gun control believe that assault weapons are used by drug dealers and street gangs, [24] and a ban on them is necessary for the protection and safety of the public. They also believe that gun control reduces crime and drug abuse. [25] Gun controllers further believe that these guns serve no legitimate purpose for either hunting or sport. [26]
Since gun control advocates believe that killing human beings is the only purpose that these guns serve, they argue that prohibiting them will make the streets and people much safer. [27] More significantly, most gun control advocates believe that the Second Amendment does not afford the individual the right to bear arms, especially those firearms that are considered assault weapons. Such advocates would argue that, although some firearms suitable for hunting and sport would be acceptable in the hands of individual citizens, the Constitution does not grant the right to bear those arms designed for the express purpose of killing human beings. [28] Gun control advocates believe that a ban on firearms designated as assault weapons is a step in the right direction to reverse the path of violence this country is taking. [29]
2. Opponents of Gun Control
"My wife yes, my dog, maybe, MY GUN, NEVER." -bumper sticker, Maryland, 1990 [30] [p.204]
Gun control opponents do not favor gun control at the federal level. [31] They argue that each independent state has the authority to regulate firearms based on the desires of their citizens. [32]
Geographic, cultural and population differences are just a few of the reasons why gun control should be at the state level. [33]
Opponents of gun control point to the fact that semiautomatic weapons have been legally owned in this country for over one hundred years. [34] Therefore, the recent attack on these weapons is nothing but an attack on millions of law-abiding citizens in this country. [35] A main argument professed by opponents of gun control is that the Second Amendment provides individuals the protected constitutional right to keep and bear arms and the ban on assault weapons will only further restrict law-abiding citizens' access to firearms and impinge on their fundamental right to bear arms. [36]
Further, opponents argue strict gun laws will do nothing to keep these weapons out of the hands of criminals who want them. [37] The majority of guns held by criminals are acquired through the black market, from other criminals, or by stealing them, rather than through licensed dealers. [38]
Opponents of gun control believe that assault weapons are not the weapons of choice for violent criminals, therefore, a ban will do little to reduce incidents of violent crime in this country. [39]
Not only do gun control opponents believe that many of the guns sought to be restricted are used legitimately for hunting and recreational [p.205] purposes, but many also serve as a means of personal self-defense. [40]
III. THE RIGHT TO KEEP AND BEAR ARMS UNDER THE SECOND AMENDMENT
A. Background
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." [41] The gun control debate centers around whether these words, read alone, or in conjunction with the rest of the Bill of Rights, confers an individual or collective right to bear firearms. The argument is this: "1) Does the Second Amendment confer a right only for militia uses, or whether it encompasses a generic right to arms; 2) whether or not the people encompass the militia; and 3) whether the word "people" applies to individuals." [42]
B. Arguments
1. Collective Right Those who favor the "collective rights" approach focus their attention on the Amendment's first part, "[a] well regulated Militia, being necessary to the security of a free state." [43] The collective rights approach is based upon the assertion that an "individual possesses the right to bear arms because he is an integral part of free state's security." [44] Therefore, according to gun control advocates, the right to keep and bear arms is limited to participation in the state militia. [45] Also, under [p.206] this approach the federal government would be limited in its restriction of an individual's access to firearms only to the extent that such restriction would prevent the state from raising a militia. [46]
2. Individual Rights
The individual rights theory focuses on the latter language of the Second Amendment, "the right of the people to keep and bear Arms, shall not be infringed." [47] Advocates of this theory argue that the Framers would not have used words similar to individual guarantees of other amendments in the Bill of Rights if they had truly meant to grant only a collective right to possess firearms. [48] Although this approach has not received the endorsement of a large number of legal scholars, the majority of the population believe that the amendment affords an individual the right to have a gun. [49]
C. A Constitutional Analysis
The Second Amendment has received probably less judicial and legal review than any other amendment in the Bill of Rights. Conversely, it has probably evoked some of the most controversial public and political debate over the gun control issue. Perhaps the most plausible explanation for the intentional oversight of the Amendment's literal meaning and historical background is that the Amendment presents genuine hurdles for those proposing strict gun control laws. [50]
1. Text
The Second Amendment is distinguishable from the rest of the Bill [p.207] of Rights primarily because it contains a preamble. [51] As a result, gun control advocates have focused on the preamble as exerting a limitation on the Amendment's grant of individual rights. Instead they argue that the only right conferred is a state's right to keep and bear arms. [52]
Gun control advocates argue that the term "people" refers to the rights to organize a militia. [53]
Historically the militia was considered to include all of the people. [54] At that time "'militia' was not a code name for National Guard" because such military organizations were not in existence. [55] The individual rights theory is further supported by the usage of "people" in the Amendment. The use of the term "people" exists in the First, Fourth, Ninth and Tenth Amendment. [56] One can hardly argue that the Fourth Amendment does not provide the individual the freedom [57] "to be secure in their persons, houses, papers and effects," [58] or that the First Amendment only affords a collective group the right to "peaceably assemble." [59] It would only be consistent that the term "people" as used in the Second Amendment would include individuals as well.
2. Historical Significance
The right to possess and own a firearm predated the Constitution. Prior to the enactment of the Constitution the Founding Fathers spoke extensively on the issue of arms and almost unanimously endorsed the notion that possession of firearms was a fundamental right. [60] Even after [p.208] the adoption of the Bill of Rights and up to the end of the 19th century, it was predominately understood that the Second Amendment to the United States Constitution provided all individuals the right to possess and own arms. [61]
During colonial America, gun ownership was considered a "basis of character and citizenship." [62]
During this time most men owned and possessed at least one firearm, often being required to do so.
[63] The preservation of the freedom of the colonists during this time required them to take the defensive, which in turn required them to possess firearms. [64] Firearms possession by citizens during this time was particularly necessary because public protection organizations were invariably unknown. [65] The weapons used by the colonists, while military in style, served the dual purposes of both protection and sport. [66] Although the Founding Fathers' attitudes are directly accessible, they have been completely ignored by gun control advocates. [67] As a result, the argument surrounding the gun control debate has been less than complete with consequence of the uncertainty causing the demise of more and more guns.
3. Judicial Interpretation
In 1939 the United States Supreme Court decided United States v. Miller [68] the most frequently cited case by both sides of the gun control controversy. In that case, the defendant, Jack Miller, was charged with violating the National Firearms Act of 1934, by moving a sawed-off shotgun through interstate commerce. [69] The Court held that no evidence[p.209] existed that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia . . . [and] certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." [70]
The decision recognized an individual right to possess firearms, while at the same time held that an individual was not required to prove participation in an organized military unit. [71] However, the Court's focus on the type of weapon suggests "rational limitations on the kinds of arms that the amendment guarantees." [72]
Those weapons that will be protected are those that are both in "common use at the present time and probably part of the ordinary military equipment." [73]
Based upon the holding of Miller, one could argue that a person has an individual right to possess a firearm that has a military style or purpose. Weapons clearly includable under this holding and thus protected from government restriction, would be military style semiautomatic assault weapons. [74]
IV. THE CRIME BILL AND THE ASSAULT WEAPONS BAN
A. Background
During President Clinton's State of the Union Address, he stated that it was time "to eliminate the so called assault weapons." [75] Then, on Thursday, August 25, 1994, after lengthy debate by members in both the House and Senate, the multimillion dollar Crime Bill was ratified. [76] [p.210] Shortly thereafter President Clinton's plan to ban these weapons was accomplished on September 13, 1994 when he signed the Crime Bill into law. [77]
One major area of controversy, almost blocking the passage of the bill was the ban on assault weapons. [78] In summary, this provision bans the manufacture of nineteen named military-style assault weapons, assault weapons with specific combat features, copied models, and high capacity ammunition magazines with a capacity of holding more than ten rounds. [79]
B. Assault Weapon Defined
What is an "assault weapon?" [80] The average person asked to define an "assault weapon" would likely respond that it is an Uzi style weapon, more commonly seen in gangster movies like "The Godfather" or [p.211] "Scarface." The technical definition for assault weapons is any type of firearms that require the depressing of the trigger each time to fire a bullet. [81] Once the trigger has been depressed another bullet will be automatically reloaded into the chamber and will be ready to fire when the trigger is again depressed. [82] Therefore, the firing rate is determined by how fast the user can pull the trigger.[83]
Semiautomatic weapons are distinguishable from fully automatic weapons. Fully automatic weapons do not require the pulling of the trigger each time to release a bullet, but fire numerous bullets by merely depressing the trigger once. [84] These types of guns will discharge every round in the magazine so long as the trigger is depressed. [85] Fully automatic weapons have been strictly regulated since 1934. [86]
The Defense Department loosely defines assault weapons as those weapons that are capable of both automatic fire and semiautomatic fire. [87] Such a broad definition has led to confusion in the legislature. Past bans have focused on semiautomatic-only, firearms that bear the appearance of a full military assault weapon, [88] and those firearms offered to civilians that lack semiautomatic capacity but do have a military appearance. [89] However, the recent move to ban assault weapons has been based on an this undefined class of guns that have both a military appearance, but lack the capacity to fire automatically. [90]
C. The Move Toward a Ban
Prior to the middle 1980's the major focus of gun control was on handguns.
Not until recently has public and political attention shifted [p.212] toward legally banning the manufacture, use and possession of firearms publicly termed "assault weapons." Proponents of the ban on assault weapons point to the most often cited incident in Stockton, California in 1989 where the news of the brutal murders of five children flooded the headlines. Patrick Purdy, armed with an AK-47 semiautomatic rifle, purchased outside of the state of California, opened fire on a schoolyard, killing the five children and injuring a number of others. [91] News of events such as this has fueled the fire for gun control advocates, who, with this type of ammunition, have shifted the focus of their lobby to the abolishment of what they term assault weapons.
In recent years gun control advocates have pushed heavily for congressional action banning certain assault weapons. Proponents of gun control argue that these are the "weapons of choice" for drug dealers and gang-members, [92] and that assault weapons serve no legitimate purpose other than for the killing of human beings. [93] As a result, federal, state and local governments have recently moved to ban assault weapons. [94] Needless to say, these legislative attempts have been met with strong and powerful opposition.
D. Assault Weapons under the 1994 Crime Bill
The assault weapons provision of the Crime Bill makes it unlawful for a person to "manufacture, transfer, or possess a semiautomatic assault weapon." [95]
The provision bans 19 semiautomatic weapons by name. [96] Furthermore, an unknown number of rifles, handguns and shotguns will be banned by description.
The ban includes any semiautomatic rifle with a detachable magazine and two or more of the following: A folding or telescoping stock; [97] [p.213] 2) pistol grip [98] that "protrudes conspicuously" beneath the rifle's action; 3) bayonet mount; 4) flash suppressor [99] or threaded muzzle designed to support one; and 5) a grenade launcher. [100] A handgun will be banned if it is a semiautomatic handgun with a detachable magazine and two or more of the following: 1) Magazine that attaches outside the grip; 2) threaded muzzle capable of accepting a barrel extender, flash suppressor, forward handgrip or silencer; 3) barrel shroud; 4) manufactured weight of 50 ounces or more when the pistol is unloaded; and 5) is a semi-auto version of an automatic firearm. [101] Also banned is any semiautomatic shotgun with two or more of the following: 1) Folding or telescoping stock; 2) a pistol grip that "protrudes conspicuously" beneath the shotgun's action; 3) fixed magazine over 5 rounds of capacity; and 4) the ability to use a detachable magazine. [102] The ban on semiautomatic shotguns may be the most controversial because such a loose and general definition could very possibly criminalize hundreds of other weapons. [103]
However, this same provision does not effect the possession or transfer of a semiautomatic assault weapon that was lawfully possessed on or before the day the provision effectively becomes law. [104]
The ban also exempts a number of firearms, replicas or duplicates specified in [p.214] Appendix A to the provision as such firearm was manufactured on October 1, 1993. [105] Also exempted from the ban is any firearm manually operated by bolt, pump, lever, or slide action; has been rendered permanently inoperable; [106] or is an antique. [107]
Not only does the bill ban certain firearms, but it also serves to ban the possession and transfer of large capacity ammunition feeding devices. [108] The statute defines large capacity ammunition feeding device as "any magazine, belt, drum, feed strip, or similar device that has a capacity of, or can be readily converted or restored to accept, more than 10 rounds of ammunition." [109] Notwithstanding, those devices legal prior to the enactment of the provision shall be excluded. [110]
V. THE ASSAULT WEAPON BAN AND ITS EFFECT ON CRIME
A. General Effect
As enacted, the assault weapon legislation does little for crime control. While perhaps sinister in appearance and labeled the "guns of choice" for criminals, especially gang-members and drug dealers, these guns represent no more than one percent [111] of the firearms in circulation in the United States. [112] In addition, surveys conducted by big cities [p.215] indicate that assault weapons constitute no more than three percent of the total firearms used in crimes. [113]
The weapons banned under the Crime Bill are not "the weapons of choice" of drug dealers and gang members. [114] The guns predominately used are the semiautomatic pistols and the Saturday Night Specials which are not covered by the ban. [115] Criminals do not want long assault rifles-they are more interested in sawed-off shotguns and handguns. [116]
Stricter gun laws in themselves cannot solve this country's crime problems. Restrictive laws regulating the ownership and possession of certain types of guns cannot singly transform a nation with deeply rooted patterns of social violence resulting from economic, education and cultural problems into a peaceful society. Nevertheless, gun control advocates and politicians alike fail to cite these other, often more dominant, factors when discussing the crime control problem in this country. [117] The reasons being that it is much easier, and socially more acceptable, for them to place the blame on guns rather than on failed government programs.
So why have assault weapons been targeted as a crime control measure? Because the argument in favor of banning these types of guns has been an emotional one, and an argument based on emotions is the most powerful one made. In fact, gun control advocates brilliantly chose the term assault weapon when lobbying for more stringent gun control because the term itself produces an almost antigun emotionalism in the senses of the public. [118]
Increasing crime rates and increased public opinion that it is the [p.216] proliferation of guns on our streets that has led to the escalation of crime, have forced federal, state and local legislators to respond. Unfortunately, the response to public and media displays of emotions has been the enactment of "feel good" [119] laws, directed against assault weapons, [120] that will have little effect on the overall crime rate. [121]
B. The Media and Public Policy
"Its name is Public Opinion. It is held in reverence. It settles everything.
Some think it is the voice of God." [122]
-Mark Twain
To political figures, public opinion may not necessarily be regarded as the voice of God, nor necessarily the voice of reason, but may more likely be appraised as a vote leading to either the triumph or peril of a political career. Politicians listen to the opinions of their constituents, who in turn form their opinion based upon information given by the media. Public opinion does not exist without force and guidance from the media, [123] and the media is no longer just a mere "vehicle" for public opinion. [124]
Political response to public opinion and media reporting on the issue of gun control has been no different.
As reports of gun violence mount, the media has unearthed an assault weapon crisis in this country.
[125] The reality is that sponsors of the assault weapons ban would, "if they sold toothpaste instead of legislation, likely be jailed for fraudulent campaigning." [126] Media reporting on gun control has been irrelevant, incorrect and too often one-sided. [127]
Prominent daily newspapers enhance the view that this country [p.217] will not be free from crime until the people are disarmed. [128] They in fact indicate that the Americans cannot even be trusted to own firearms, [129] and some have even decided that media neutrality in the gun debate can no longer continue. [130] The media has even gone so far as to help build support for the "assault weapon" ban by urging citizens to take political action. [131] The result has been the failure of the media to report real crime issues, but have instead helped to create a public hysteria against semiautomatic weapons.
Incidents such as the Stockton California killings, drive-by shootings and drug dealers armed to the teeth with assault weapons have given the media more firepower in the great gun control war than the sum total of the NRA. As a result, the media has begun to focus its attention on the assault weapon.
[132] In the emotional argument, the media, supported by gun control advocates, have the upper hand over their opponents because they can display corpses and explicit photographs of grisly carnage resulting from the misuse of guns. [133] Although gun control opponents use the media to send out messages that private citizens may protect themselves by owning a gun, these messages do not impact [p.218] on the public as much as stories illustrated with pictures of defenseless children gunned down in cold blood. Emotional arguments are successful in achieving more dramatic results than fact and reason alone could ever possibly accomplish. [134]
The fact is that the media actually plays a dual role in the gun control issue. While the media is helping the gun control forces push for more severe gun control laws, they are also broadcasting some of the most violent movies and series ever before seen. Gun control organizations are simultaneously blaming the media as the reason why the young people in this country resort to gun violence to resolve disputes while using the media to press the public to launch the most severe gun control campaign of our time.
Regulating and censoring the media is not the solution. One solution to achieving a resolution is to educate the public with regard to the value of life, the proper use of guns and the consequences of their actions when they fail to follow society's laws.
C. Arresting The Myths About Gun Control
1. Myth 1: Public Opinion Supports Gun Control
Gun controllers firmly believe that the public supports the "no guns" or "limited guns" policy that the controllers advocate. [135] The fact is that most American people could not state what the gun laws are in their state or on the federal level. [136] Further, they probably could not state the penalties for crimes perpetrated with a firearm. To the public, gun control carries a variety of meanings. Gun control may signify a complete ban on all guns, the banning of only fully automatic weapons, waiting periods, background checks, or even merely punishing those who misuse firearms. [137] Because there is neither a universal definition of gun control, nor an absolute public understanding of what the existing [p.219] gun laws, the statement that public opinion supports more severe gun control is to say little if nothing at all.
Contrary to the belief of the gun controllers, most Americans believe that the Constitution guarantees the right of an individual to possess a firearm. [138] Until gun control advocates themselves come up with an absolute definition of gun control, they should stop asserting that they have the support of the public. Instead of telling the public what they support (with the help of the media), they should let the public decide for themselves, based upon facts and not fiction, [139] what, if anything, they want gun control to be. [140]
2. Myth 2: "Assault Weapons" Serve No Useful Purpose
Gun control advocates also argue that firearms serve no useful purpose other than for the destruction of human life and property. However, of the approximately 200 million firearms, a large number of these guns are used for hunting, for protection, for recreation such as target shooting, and for collection. [141] Even so, gun control supporters argue that firearm ownership by the general populace is not necessary, and that they are only required for the security of a national defense and for law enforcement. [142]
President Clinton is even on record as stating that "'there is no sporting purpose on Earth, that should stop the United States Congress [p.220] from banishing assault weapons that outgun police and cut down children."' [143] Such advocates believe that firearms in the hands of the public can only serve as a tool for social violence. [144]
However, President Clinton, during a recent bird-shooting trip used a semiautomatic Benelli M1 Super 90 Field Auto Shotgun to bag his catch. [145]
Statements such as the one made by President Clinton fail to acknowledge that firearms serve many useful purposes when used properly. The same guns that are capable of killing people are also used for hunting and recreational purposes. Many firearms, often of military type design, have been used for sport throughout American history, and many semiautomatic weapons have been no exception. [146]
Nevertheless, a number of weapons that have hunting and sporting purposes have been banned by this legislation. [147] The materials used to manufacture many of the military style weapons are also used in a variety of sporting weapons. These materials are used because they are light-weight and durable. [148] Unfortunately, because they also possess "military characteristics" these guns are classified as assault weapons and have been banned in the name of public safety. [149]
More important than their sporting purpose is the importance that these weapons serve to a number of citizens for self-protection. Reports indicate that firearms are used to prevent criminal attacks more than two million times a year. [150] This number is higher than the rate that criminals use these weapons to perpetrate crimes and violent acts. [151] In fact, reports demonstrate that as many as seventy-five lives are saved for every one life lost to a gun. [152] Because the effective use of guns for [p.221] civilian self-protection outweighs the damages caused by the misuse of guns, a ban on these types of guns will do more harm than good. [153]
3. Myth 3: "Assault Weapons" are More Lethal
Gun controllers believe semiautomatic weapons are more lethal than weapons used for sport. [154]
However, they fail to recognize the fact that a revolver can operate as fast as a semiautomatic weapon.
The firearms under the ban are not machine guns, nor do they fire deadlier ammunition. [155] In actuality, non-semiautomatics used primarily for hunting may actually be more lethal [156] than some of the weapons banned under the Crime Bill. [157] For example, a Winchester Model Twelve pump action shotgun has the ability to fire "six 00 buckshot" shells, containing large .33 caliber shotgun pellets, in three seconds. [158] Because each "buckshot" shell holds twelve .33 caliber pellets, the Winchester shotgun has the ability to discharge seventy-two projectiles in [p.222] a matter of seconds. [159] In comparison, the rate of fire of the Kalashnikov semiautomatic weapon is approximately forty shots per minute. [160] Assault weapons neither fire faster, nor are they more lethal. So it seems legislators have moved to ban these guns based on their cosmetic appearance.
These firearms shoot the same, they use the same bullets and the only difference is how they look.[161] Although some of these weapons are considered to be sinister in appearance, they are no more menacing than other firearms. These guns are being banned because they are considered "intimidating." Presumably if a person had either an AK-47 or a Glock 17 shoved in their face the intimidating response would probably be the same for both weapons. [162] "Banning a firearm based upon cosmetic appearance is a tragic misplacement of legislative priorities sure to lead to greater disillusionment for those who yearn for a greater sense of security. [163]
The ban on the capacity size of a magazine will also be futile. The changing of a magazine requires approximately 1.5 seconds. [164] As a result, a person could fire three ten-round magazines in essentially the same amount of time that they could fire two fifteen-round magazines. Additionally, a firearm capable of accepting a magazine is also capable of accepting a magazine of an indeterminate capacity. [165] They may also be converted to hold more rounds. [166] Therefore, the ban on the magazine capacity may essentially mean a ban on an unknown number semiautomatic rifles and pistols. [167]
4. Myth 4: Only A Determinate Class of Semiautomatic Weapons Are Banned
Although only nineteen specifically named semiautomatic weapons [p.223] will be banned under this legislation, an indeterminate number based upon their characteristics will also be banned. The actual number of firearms effected by this ban is unclear because this legislation is so vague. [168] The only fact that is known is that a number of weapons used for sporting and recreation purposes will be adversely effected by this ban. [169]
Appendix A of the legislation exempts 670 specific weapons which are used primarily for hunting and sporting purposes. [170] However, of the 670 weapons exempted, only 85 (thirteen percent) are actually semiautomatic weapons. [171] The Appendix of exempted firearms is further inflated because it lists a number of firearms that are merely a variation of the same weapon. [172]
Because the specific number of firearms actually banned under this legislation is not clear, enforcement of this ban because extremely difficult. [173] Enforcement becomes even more difficult because many semiautomatic weapons have been grand fathered by the legislation. Therefore, law enforcement officials will be required to make the determination between those weapons that were legally possessed prior to the ban and those that have been thereafter acquired. [174]
5. Myth 5: "Assault Weapons" Can Be Easily Converted To The More Deadly Fully Automatic Weapon
Gun control advocates believe that a ban on these weapons is necessary because they can easily be converted into the "lethal" fully automatic firearm. [175] Nevertheless, according to the Bureau of Alcohol, [p.224] Tobacco and Firearms this conception is erroneous. [176] Transforming a semiautomatic into a weapon that is fully automatic would require hours of labor by a skilled gunsmith who was also willing to go to jail for committing a felony. [177] If gun controllers want to do something about the possibility of semiautomatic conversion they should push for stronger penalties for persons who are caught possessing or using a converted weapon.
6. Myth 6: Banning "Assault Weapons" Will Prevent Criminals From Getting Them
Another pitfall to the "gun ban reduces crime" argument is that criminals will still find a way to obtain assault weapons. [178] Passing more and more gun laws will not prevent criminals from committing crimes with guns. [179] In fact, most assault weapons obtained by criminals are done so by illegal means. [180] A similar conclusion was reached by James D. Wright and Peter Rossi for the National Institute of Justice. These two scholars, who began their study believing gun control was needed to curb crime, concluded at the end of their study that the argument for stricter gun control laws cannot be made "at least on empirical grounds." [181] Although these scholars praised the overall goal of gun controllers to reduce crime in America, they concluded that as far as the relationship between guns and crime go "they are barking up the wrong tree." [182] [p.225]
According to Wright, gun control that is directed at the average law-abiding citizen will not likely diminish the number of guns that reach the hands of criminals, but will more likely afford organized crime with a profitable business. [183] Outlawing these guns will only allow them to be possessed by outlaws themselves.
Additionally, even if we could confiscate every gun banned by this legislation, it cannot prevent the production of "homemade" guns that have the same design and firing power. [184] In Washington D.C. one-fifth of the guns seized were homemade. [185] A person with relative knowledge of firearms would not have difficulty making a homemade assault weapon. [186] As a result, it is difficult to imagine that this would be more troublesome for organized crime. [187]
7. Myth 7: The Guarantees Afforded By the Constitution No Longer [p.226] Exist Today
Gun controllers believe that the Constitution is a living and breathing document that must be able to adapt to the times for which it is to govern, and because of this they assert that the Framers could not have envisioned a society where guns contribute to so much violence and serve so little social utility. As a society we must decide if this is a determination that we want gun control organizations to make for us, or if we would rather make that determination ourselves by the use of an electorate. Congress' purpose is to uphold the freedoms provided for by the Constitution, not to determine what rights Americans need and do not need. [188] The people must decide how far we are going to let the government's "war on crime" erode our constitutional guarantees.
President Clinton has been quoted as saying: [N]either those who love to hunt, or who love to shoot weapons in contests, nor the framers of the Constitution when they wrote the Second Amendment, envisioned a time when children on our streets would legally be in possession of weapons designed solely to kill other people and have more weapons than the people who are supposed to be policing them. [189]
This statement, though an emotional one, is seriously flawed. The problem is that the children he is referring to are not in legal [190] possession of these guns; therefore, legal restrictions will not keep them from obtaining guns.
Presumably the Framers of the Constitution also did not envision a time of gang warfare and drive-by shootings, nor is it likely that they envisioned crack cocaine. Regardless, as a society we have freed countless drug pushers and users because of the individual guarantees afforded to them under the Constitution. Additionally, it is likely that the Framers could not have envisioned a time when a U.S. citizen would be protected by the Constitution for burning the flag of the United States. [p.227] Nevertheless, we protect such conduct under the First Amendment's guarantee of freedom of speech.
The conduct of people in this country, even if not "morally" acceptable has been protected under the Constitution. [191] The right to bears arms should be no different. [192] The Constitution has not changed, only the people who interpret the meaning of the Constitution have changed.
VI. CRIME CONTROL, NOT GUN CONTROL
The Government's war against crime is eroding the very rights the Founders of the Constitution intended to provide. For opponents of gun control, the banning of assault weapons is just the first governmental step in what may well result in a total ban on firearms. In fact some proponents of gun control have argued that once the crime bill is passed, it will become increasingly easier to get the laws "we need" passed and it is one step taken down the road of crime control. [193] After the passage of the Crime Bill, gun control advocates are going to fight for more and more restrictions on guns, [194] until the right to bear arms is essentially wiped out. Regardless, Draconian laws such as this is what the Founders sought to prevent.
Gun Control is not crime control. [195] Gun control advocates have continually pledged a large societal return in reduced crime rates by restricting [p.228] the rights of individual citizens. Unfortunately, there has been little return on these promises, [196] and the ban on semiautomatic weapons is just another misleading substitute for fighting crime. [197]
Although it is admitted that there is a serious crime problem in this country, a ban on semiautomatic weapons will not be the solution. [198] This ban fails to focus on the real cause of crime, the criminal. [199] The method which will be most successful in reducing the crime rate is the promise, not threat, of swift and certain punishment. [200] The time has come when the punishment for gun violence must be commensurate with the crime committed.
To reduce the crime rate we must begin to focus our attention on real solutions rather than trying to put a band-aid on a wound that continues to bleed. Once a person has committed a violent crime, especially one with a firearm, no deterrent short of incarceration will be successful, especially not stricter gun control measures. [201] "It is time to get off the backs of the tens of millions of law-abiding American firearms owners and to get on the case of violent criminals." [202]
An alternative crime measure includes the "Three Strikes and You're Out" proposals. Under these laws, any person convicted of three violent felonies would receive a life sentence. Another proposal includes the "truth in sentencing" laws that require criminals to serve a minimum of eighty-five percent of their imposed sentence. [203]
Much of this country's crime rate can be attributable to a failed revolving-[p.229] door criminal justice system and not to the lack of gun control laws. Violent crime exists because more prisons are not built, criminals are not prosecuted and when they are they are not locked up. [204]
The brutal killings in Stockton, California is a prime example of criminal justice breakdown. Patrick Purdy who had an extensive criminal record, [205] reported a desire to commit a mass murder to a social worker prior to the shootings. [206] Perhaps this could have been prevented if he had received appropriate punishment for his previous act. "Only one control could have stopped Purdy from killing those children and this is prison" [207]
With the 20,000 already existing gun control laws on the books, the enactment of stricter gun laws will have little effect on crime. Current gun laws are being broken every day, and new gun laws will serve to be no different. Gun control advocates agree that banning assault weapons will not solve crime problems. [208] In order to reduce crime in this country, legislators are going to have to come up with something better than gun control because it won't take the public long to figure out that gun control is merely a "smokescreen" to the real crime issues that the public may one day come face to face with.
VII. CONCLUSION
Banning assault weapons will not cure the deeply rooted social and criminal ailments that plague this society. The war against crime has in turn resulted in a war against individually protected Constitutional [p.230] rights. As seen, there is no immediate measure that will end crime in this country. But band-aid remedies such as stricter gun control regulations is not the solution. If we are going to stop the crime we are going to need tough criminal penalties for crimes perpetrated with the use of a firearm.
Studies have indicated banning the manufacture, ownership and possession of these guns will not have a significant effect on the overall crime rate. While both sides to the gun control debate agree that crime is a number one concern in this country, the realization that gun control is not the answer must be accepted so that we can move on and obtain true measures that will result in a decreased crime rate.
Without the work of both sides to this war, the chances of reaching such a result is greatly diminished.
1. George Mason, 3 Elliot Debates at 380.
2. 140 CONG. REC. H3063-05, H3064 (daily ed. May 5, 1994) (statement of Rep. Derrick).
3. 140 CONG. REC. S12557-01 (daily ed. Aug. 25, 1994) (statement of Sen. Hatch); 140 Cong. Rec. H3063-05, H3067 (daily ed. May 5, 1994) (statement of Rep. Quillen); KEITH BEA, CONGRESSIONAL RESEARCH SERVICE, GUN CONTROL, (July 28, 1994).
4. 140 CONG. REC. H3063-05, H3100 (daily ed. May 5, 1994) (statement of Rep. Lloyd), H3089 (statement of Rep. Yates).
5. See Eric C. Morgan and David B. Kopel, The "Assault Weapon" Panic: Political Correctness Takes Aim at the Constitution, 10/93 INDEPENDENCE INSTITUTE ISSUE PAPER, 33 (April 10, 1993).
6. 140 CONG. REC. H3063-05, H3067 (daily ed. May 5, 1994) (statement of Rep. Quillen); 140 CONG. REC. S12557-01, 12558 (daily ed. August 25, 1994) (statement of Sen. Hatch).
7. DAVID B. KOPEL, SECOND AMENDMENT FOUNDATION RESEARCH REPORTS BANS ON SEMI- AUTOMATICS: UNCONSTITUTIONAL HYSTERIA.
8. Violent Crime Control and Law Enforcement Act of 1994, 55 CRIM. L. REP. (BNA) No. 21, at 2369 (Aug. 31, 1994).
9. CONGRESSIONAL RESEARCH SERVICE, GUN CONTROL.
10. "Police powers" granted under the Tenth Amendment to the U.S. Constitution were primarily reserved to the States. SUZANNE CAVANAUGH, CONGRESSIONAL RESEARCH SERVICE, CRIME CONTROL: THE FEDERAL RESPONSE, August 29, 1994.
11. Id.
12. The National Firearms Act of 1934 sought to make it more difficult to obtain firearms that were considered to be especially destructive such as machine guns and sawed-off shotguns. The Federal Firearms Act of 1938 was designed to restrict firearms in the hands of convicted felons.
DONALD D. HOOK, GUN CONTROL THE CONTINUING DEBATE 36 (1993).
13. The assassinations of a number of highly political figures such as, President John F.
Kennedy, Martin Luther King, Jr., Malcolm X and Robert Kennedy brought about outcry for more restrictive gun laws. At this point the primary polarization of the gun control debate transpired. The Gun Control Act of 1968 had two major components: a federal licensing requirement of persons manufacturing or dealing in firearms and the same requirements to be applied to other devices such as bombs, grenades and other explosive materials. Id. at 36-37.
14. Gun Control, supra note 9, at 1.
15. Id.
16. Mark Udulutch, The Constitutional Implications of Gun Control and Several Realistic Gun Control Proposals, 17 Am. J. Crim. L. 19 (1989); 140 Cong. Rec. H3063-05, H3072 (daily ed. May 5, 1994) (statement of Rep. Stearns).
17. Id. In fact gun control opponents point to the large number of gun laws already in existence as evidence of the failure of such laws. Id.
18. 140 CONG. REC. S12557-01, S12561 (daily ed. Aug. 25, 1994) (statement of Sen. Stevens). Out of the 200 million firearms approximately only .02 percent are misused on an annual basis. Id. Approximately two-thirds of the 200 million firearms are handguns. Jeffrey R. Snyder, A Nation of Cowards, 113 THE PUBLIC INTEREST 40, 46 (1993).
19. Cavanaugh, supra note 10, at 2.
20. Hook, supra note 12, at 69.
21. Id. See Barry Bruce-Briggs, THE GREAT AMERICAN GUN WAR, Second Amendment Foundation Monograph Series (Bellevue, Wash.: Second Amendment Foundation), 1976. See Hook, supra note 12, at 69.
22. 140 CONG. REC. H3063-05, H3068 (daily ed. May 5, 1994) (statement of Rep. Nadler); Bea, supra note 3.
23. ALAN M. GOTTLIEB, GUN RIGHTS FACT BOOK 145 (1989).
24. 140 CONG. REC. E889-02 (daily ed. May 11, 1994) statement of Rep. Abercrombie); 140 CONG. REC. H3063-05, H3064 (daily ed. May 5, 1994) (statement of Rep. Derrick).
25. Morgan and Kopel, supra note 5, at 11.
26. 140 CONG. REC. H3063-05, H3068 (daily ed. May 5 1994) (statement Rep. Nadler). Gun owners and advocates are often perceived as "uneducated, paranoid rednecks, fascinated by violence." Mario Cuomo, Governor of New York, has even been cited as characterizing gun owners as "hunters who drink beer, don't vote, and lie to their wives about where they have been all weekend." Snyder, supra note 18, at 46.
27. Morgan and Kopel, supra note 5, at 11.
28. 140 CONG. REC. H3063-05, H3100 (daily ed. May 5, 1994) (statement of Rep. Lloyd); 140 CONG. REC. S1864-01, S1865 (daily ed. Feb. 28, 1989) (statement of Daryl F. Gates).
29. 140 CONG. REC. S1864-01, S1866 (daily ed. Feb. 28, 1989) (statement of William Pattison).
30. See Hook, supra note 12, at 102. Opponents of gun control hold strong sentiment that they have a fundamental right to bear arms expressed often by such language as, "You can have my gun when you pry it from my cold dead hands." Snyder, supra note 18, at 55.
31. Many gun control opponents do not favor any measure seeking to place restrictions on the right to bear arms. In fact, some would define gun control as "steady aim." 140 CONG. REC.
H3063-05, H3079 (daily ed. May 5, 1994) (statement of Rep. Andrews).
32. Hook, supra note 12, at 61.
33. Id.
34. 140 CONG. REC. 1864-01, S1870 (daily ed. Feb. 28, 1989) (statement of James Jay Baker).
35. Id.
36. 140 CONG. REC. S1864-01, S1870 (daily ed. Feb. 28, 1989) (statement of John M. Snyder).
37. Hook, supra note 12, at 61. The argument is similar to the results surrounding prohibition. If people want guns, people will get them.
38. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement of Sen. Hatch).
39. Id.
40. Laurel Loomis, A New Look At Gun Control Legislation: Responding to a Culture of Violence, 27 Bev. Hills B.A. J. 160 (1993). 140 Cong. Rec. H3063-05, H3065 (daily ed. May 5, 1994) (statement of Rep. Solomon), H3067 (statement of Rep. Quillen). Approximately one million firearms are used for self-defense annually. 140 Cong. Rec. S12557-01, S12561 (daily ed. August 15, 1994) (statement of Sen. Stevens).
41. U.S. CONST. amend. II.
42. Up To Date: A Publication of the Second Amendment Foundation, Our Constitutional Right: Why the Second Amendment Guarantees Our Right to Keep and Bear Arms.
43. U.S. CONST. amend. II.
44. Michael T. O'Donnell, The Second Amendment: A Study of Recent Trends, 25 U. RICH. L. REV. 501, 505 (1991).
45. Morgan and Kopel, supra note 5, at 45.
46. Udulutch, supra note 16, at 31.
47. O'Donnell, supra note 45, at 503. See U.S. CONST. amend. II.
48. Robert A. O'Hare, Jr. and Jorge Pedreira, An Uncertain Right: The Second Amendment and the Assault Weapon Legislation Controversy, 66 ST. JOHNS L. REV. 179, 189 (1992).
49. Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 206 (1983). Further support of the "individual rights" theory can be found in a review of Chief Justice Traney's opinion in the Dred Scott case where he indicated that "an uncontroversial attribute of citizenship, in addition to the right to migrate from one state to another, was the right to possess arms." See Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 651 (1989).
50. Levinson, supra note 50, at 642.
51. Id. at 644.
52. Id. The position taken by the ACLU is that the right protected by the Amendment is for "maintaining an effective state militia. . . [T]he individual's right to bear arms applies only to the preservation or efficiency of a well-regulated [state] militia." The ACLU firmly believes then that individual rights to possess firearms are not protected. Id.
53. Up To Date, supra note 43, at 3.
54. Levinson, supra note 50, at 646. The definition of "militia" has remained the same since that time. Section 311(a) of the United States Code defined militia as "The Militia of the United States consists of all able-bodied males at least 17 years of age and ... under 45 years of age." The Code further distinguishes the "organized militia" such as the National Guard from the "unorganized militia." Morgan and Kopel, supra note 5, at 50.
55. Morgan and Kopel, supra note 5, at 50.
56. Levinson, supra note 50, at 645.
57. Id. at 645.
58. U.S. CONST. amend. IV.
59. U.S. CONST. amend. I. See Levinson, supra note 50, at 645.
60. Alan M. Gottlieb, Gun Ownership: A Constitutional Right, 10 N. KY. L. REV. 113 (1982).
61. Don B. Kates Jr., The Second Amendment and the Ideology of Self- Protection, 9 CONSTITUTIONAL COMMENTARY 87 (Winter 1992).
62. O'Hare and Pedreira, supra note 49, at 183.
63. Id. at 185.
64. Loomis, supra note 41, at 161.
65. Morgan and Kopel, supra note 5, at 46.
66. Id. at 47.
67. Gottlieb, supra note 61. "Americans need never fear their government because of 'the advantages of being armed, which the Americans possess over the people of almost every other nation."' THE FEDERALIST NO. 46 (James Madison). "To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them." Richard Lee, LETTERS FROM THE FEDERAL FARMER 169-170. See Gottlieb, supra note 23, at 82.
68. 307 U.S. 174 (1939).
69. Levinson, supra note 50, at 654.
70. Miller, 307 U.S. at 178. See Levinson, supra note 50, at 654.
71. Donald Kates, HANDGUN PROHIBITION 221-223, 250-251. See Gottlieb, supra note 23, at 74.
72. Gottlieb, supra note 23, at 74.
73. Id.
74. See Levinson, supra note 50, at 655.
75. Banning "Assault" Weapons, WASH. TIMES, January 31, 1994, at A4.
76. CONGRESSIONAL RESEARCH SERVICE, THE LIBRARY OF CONGRESS, THE CRIME CONTROL ACT OF 1994; selected highlights of h.r. 3355 as passed, august 30, 1994. In Minnesota, house representatives voted for the assault weapons ban as follows: T. Penny (D), D.
Minge (D), B. Vento (D), and M. Sabo (D) voted yes; J. Ramstad (R), R.Grams (R), C. Peterson (D) and J. Oberstar (D) voted against the ban. In the senate, D. Durenberger (D) voted no, while P.
Wellstone (D) voted yes. the voting information was provided by the NRA Foot Note 77. The high points of the Crime Bill include: substantial financial support for State and Federal law enforcement efforts, prisons and crime prevention; expansion of the federal capital sentencing for a number of offenses; three strikes provision calling for mandatory life sentences for violent offenders convicted of three serious felonies; calls for the placement of 100,000 law enforcement officers over six years and, more significantly, the ban on the manufacture, sale and possession of 19 assault weapons. Congressional Research Service, The Library of Congress, Crime Control, IP 310C. See, CONGRESSIONAL RESEARCH SERVICE, THE LIBRARY OF CONGRESS, THE CRIME CONTROL ACT OF 1994; Selected Highlights of H.R. 3355 as Passed, August 30, 1994.
78. The livelihood of the crime bill basically came down to the assault weapons provision.
Opponents say the bill suffered original defeat due to the pressure placed on members by the NRA. "They are holding the crime bill hostage until we remove the ban on assault weapons." Kenneth J. Cooper, Gun Control Opponents Prevail In Stinging Defeat for Clinton, WASH. POST, August 12, 1994, at A1. The single item that made the difference all along in over six years in getting the Crime Bill passed was guns. "The issue will be assault weapons or no assault weapons." 140 CONG. REC. S125570-01, (daily ed. Aug. 25, 1994) (statement of Sen. Biden).
79. CRIME BILL SUMMARY, provided by U.S. Senator Paul Wellstone. The Crime Bill also prohibits the sale or transfer of a gun to a juvenile, and the possession of a gun by a juvenile. Also prohibited are gun sales to, and possession by, persons subject to family violence restraining orders. Finally, this Title strengthens federal licensing requirements. Id.
80. Although "assault rifles" have a precise definition, the term "assault weapon" is not clearly defined. Assault rifles, as defined by the United States Defense Department's Defense Intelligence Agency book SMALL ARMS IDENTIFICATION AND OPERATION GUIDE, is a "short, compact, selective fire weapon that fires a cartridge intermediate in power between a submachinegun and a rifle cartridge." The formal definition corresponds with the historical function assault weapons served. Guns meeting this description were significant because they were compact and easily carried in a battlefield. Additionally the intermediate fire power enabled the user to have more control over the recoil thereby increasing the accuracy. More significantly, these weapons had selective firepower which enabled the user to, at a flick of a switch, change from semiautomatic power to fully automatic firing capacity. Morgan and Kopel, supra note 5, at 9-10.
81. Daniel Abrams, Ending the Other Arms Race: An Argument for the Ban on Assault Weapons, 10 YALE L. & POL'Y REV. 489, 491 (1992).
82. Id.
83. Morgan and Kopel, supra note 5, at 13.
84. Abrams, supra note 82, at 492.
85. Morgan and Kopel, supra note 5, at 7.
86. Franklin E. Zimring, The Problem of Assault Firearms, CRIME & DELINQUENCY, 539, 541, (Oct. 1989). In addition, the sale of fully automatic weapons to persons not having government authorization was restricted in 1986. 18 U.S.C. sec. 922(o) (1988). This amendment also required government authorization to transfer these weapons. 18 U.S.C. sec.'s 922(o)(2)(A) (1988).
87. Banning "Assault" Weapons, WASH. TIMES, January 31, 1994, at A4.
88. Morgan and Kopel, supra note 5, at 9.
89. Id. at 9.
90. Id. at 10.
91. O'Hare and Pedreira, supra note 49, at 196.
92. 140 CONG. REC. E889-02 (daily ed. May 11, 1994) statement of Rep. Abercrombie). 140 CONG. REC. H3063-05, H3064 (daily ed. May 5, 1994) (statement of Rep. Derrick), H3088 (statement of Rep. Conyers).
93. O'Hare and Pedreira, supra note 49, at 196.
94. Id. Although murders such as these are not the sole basis for legislative action; the government argues it is another method employed to combat the "war on drugs." Abrams, supra note 82, at 491.
95. Violent Crime Control and Law Enforcement Act of 1994, 55 CRIM. L. REP. (BNA) No. 21, at 2369 (Aug. 31, 1994).
96. The guns banned by name are: "Norinco, Mitchell, and Poly Technologies Automat Kalashnikovs-"AK-type" (all models); Action Arms Israeli Military Industries Uzi and Galil; Beretta Ar70; Colt AR-15; Fabrique National FN/FAL, FN/LAR, and FNC; SWD M-10, M-11/9, and M-12; Steyr AUG; and INTRATEC TEC-9, TEC-DC9 AND TEC-22 and revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12." Id. at 2370.
97. Folding stocks are known to provide greater concealability and portability. These devices may even make a weapon more suitable for sporting purposes. Thomas R. Thompson, Form or Substance? Definitional Aspects of Assault Weapon Legislation, 17 FLA. ST. U. L. REV. 649, 660 (1992).
98. Pistol grips are used to assist in the holding and firing of a weapon and even allows for a person to fire by using only one hand. Id. at 661.
99. There are two primary functions of a flash suppressor: 1) they are used to conceal the position of a shooter by discharging a flash from the muzzle; and 2) they also help to "control muzzle climb." Id. at 661
100. Violent Crime Control and Law Enforcement Act of 1994, 55 CRIM. L. REP. (BNA) No. 21, at 2370 (Aug. 31, 1994).
101. Id.
102. Id.
103. Gun Control, supra note 9, at 4.
104. Violent Crime Control and Law Enforcement Act of 1994, 55 CRIM. L. REP. (BNA) No. 21, at 2369 (Aug. 31, 1994).
105. The number of guns excluded under Appendix A is to numerous to list. See id. at 2371-2373.
106. Id. at 2369.
107. Violent Crime Control and Law Enforcement Act of 1994, 55 CRIM. L. REP. (BNA) No. 21, at 2370 (Aug. 31, 1994).
108. Id.
109. Id.
110. Id.
111. 140 Cong. Rec. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement Sen. Hatch).
From April 1, 1987 to April 1, 1989, the Minneapolis police property room received 2,200 firearms.
Of these 2,200 guns, 8 were semiautomatic assault rifles. Sgt. W. Reins, Memorandum to Chief J.
Laux, April 3, 1989. See Morgan and Kopel, supra note 5, at 35. When testifying before a Senate committee, Ottertail County Sheriff Gary Nelson and Minneapolis police firearms examiner David Lindman stated that of a 122 homicides analyzed in Minnesota in 1991, only 3 were caused by rifles of any kind. "'You ask why a rifle is not the weapon of choice of a criminal?' You can't hide them under your coat." Rifles Used in Few Crimes, ST. PAUL PIONEER PRESS, March 27, 1994, A4.
112. Gordon Witkin, A Surprising Ban on Assault Weapons, U.S. NEWS & WORLD REPT., May 16, 1994. The testimony of a Trenton, New Jersey police official indicates that "assault weapons" are used in .026% of 1 percent of crimes in New Jersey. "This means that my officers are more likely to confront an escaped tiger from the local zoo than to confront an assault rifle in the hands of a drug-crazed killer on the streets." Banning "Assault" Weapons, WASH. TIMES, January 31, 1994.
113. Id.
114. 140 CONG. REC. H3063-05, H3076 (daily ed. May 5, 1994) (statement of Rep. Sensenbrenner). S1864-01.
115. Witkin, supra note 113.
116. 140 CONG. REC. S1864-01, S1872 (daily ed. Feb. 28, 1989) (statement of James Jay Baker).
117. This Bill directs attention away from the real cause of crime, mainly the criminal. Instead, the Bill needs to focus on getting criminals off the streets. See 140 CONG. REC. H3063-05.
118. Several Senators have also noted that it was a stroke of brilliance to attach the label of "assault weapon" to certain semiautomatic firearms. Morgan and Kopel, supra note 5, at 40. Gun control advocates focus their attention to "emotionalism rather than justice." They point to incidents such as the shooting of Jim Brady when they support strict gun control measures. 140 CONG. REC. H3063-05, H3070 (daily ed. May 5, 1994) (statement Rep. Dickey). Advocates of gun control show scary guns, use and emotion and fear and the tragedy of others for political purposes. H3076 (statement of Rep. Sensenbrenner).
119. These are laws that are enacted based on a need to do something about a problem in hopes that the law will at least have a minimal effect on its purpose. See Morgan and Kopel, supra note 5, at 33. What is needed more than the enactment of feel-good measures that ignores the real crime issues is tough criminal penalties that get to the bottom of this Nation's crime problems. See 140 CONG. REC. H3063-05, H3072 (daily ed. May 5, 1994) (statement of Rep.
Stearns).
120. Sekerak, et al., supra note 93, at 3.
121. Id.
122. Hook, supra note 12, at 125.
123. Id. at 125.
124. The ban on assault weapons is an attempt to ban firearms based on labels. In fact, the term "assault weapon" is repeated numerously by the media as a means that has assisted in only confusing the issue. 140 CONG. REC. H3063- 05, H3083 (daily ed. May 5, 1994) (statement of Rep. Schiff).
125. Morgan and Kopel, supra note 5, at 1.
126. Id. at 37.
127. Gottlieb, supra note 61, at 97. The media fails to report facts such as: a number of scholars oppose gun control; the true facts relating guns to crimes; the constitutional implications; and that even a large portion of the police do not support such bans. Id. at 99.
128. "We will never fully solve our nation's horrific problem of gun violence unless we ban the manufacture and sale of handguns and semiautomatic assault weapons." USA TODAY, December 29, 1993. "Why should America adopt a policy of near-zero tolerance for private gun ownership? ...(W)ho can still argue compellingly that Americans can be trusted to handle guns safely?" LOS ANGELES TIMES, December 28, 1993.
129. Id.
130. "...But the time for opinions on the dangers of gun availability is long since gone, replaced by overwhelming evidence that it represents a growing threat to public safety...our responsibility now is to confront indifference about the escalating violence the unwillingness to do something about it." Gloria Hammond, Time, form letter to persons complaining about firearms coverage, August 1, 1989. See Morgan and Kopel, supra note 5, at 39. One media reporter testifying before Congress stated, "this battle is too critical, too many innocent lives are on the line, for us in the media to remain silent." This writer concluded that "It is a goal so critical in the safety of our communities, that if we in the media fail to support you in your effort [banning assault weapons], we will not be doing our job." 140 CONG. REC. S1864- 01, 1868 (daily ed. Feb. 28, 1989) (statement of Bill Press).
131. ABC-owned stations have promoted gun prohibition by "every time there is an incident using a semiautomatic assault rifle in the city of Los Angeles, we report it on the news and then ask people to write to the State legislature to ban these weapons." CONG. REC. Feb. 28, 1989, at S. 1868 (Subcommittee on the Constitution. See Morgan & Kopel, supra note 5, at 39.
132. Zimring, supra note 87, at 539.
133. Udulutch, supra note 16, at 20.
134. When the "assault weapon" ban issue is discussed proponents often cite to random slaughters of the innocent and parents weeping over the graves of their slain children, but they fail to cite that these, although perhaps the result of a firearm, are largely not the result of an assault weapon. 140 CONG. REC. H3063-05.
135. Hook, supra note 12, at 123.
136. Id. at 53.
137. See id. at 123.
138. Id.
139. Legislators and lobbyists alike have latched on to public confusion over what an "assault weapon" is. Joseph Sugarman, head of a gun control organization, even stated: "The Semiautomatic weapons' menacing looks, coupled with the public's confusion over fully automatic machine guns versus semiautomatic assault weapons - anything that looks like a machine gun is assumed to be a machine gun - can only increase that chance of public support for restrictions on these weapons." Morgan and Kopel, supra note 5, at 40.
140. Gun controllers also believe that they have the support of major law enforcement organizations and police rank and file. The opposite is true. Gottlieb, supra note 61, at 111.
National Sheriff's Association: "There is no valid evidence whatsoever to indicate that depriving law-abiding American citizens of the right to own arms would in any way lessen crime of criminal activity..." American Federation of Police: "There are many Americans who fear for their lives.
They know that often they will have to protect themselves, their own families, and their property. Should these people be disarmed? No, we don't need to disarm our loyal citizens, our friends, and our neighbors. We just need judges with the guts to make the use of a gun in a crime a risk that a few will undertake in the future." Id.
141. GARY KLECK, POINT BLANK 17-47 (1991). 140 CONG. REC. H3063-05, H3065 (daily ed. May 5, 1994) (statement Rep. Solomon).
142. Udulutch, supra note 16, at 23.
143. Banning "assault" weapons, WASH. TIMES, Monday, January 31, 1994. Additionally, U.S. Attorney General Janet Reno and FBI director Lois Freeh are also in favor of such a ban. Id.
144. Udulutch, supra note 16, at 23.
145. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement Sen. Hatch).
146. The AK-47 weapon used by Patrick Purdy in Stockton, California is the same weapon is used lawfully for hunting in 48 states and is used by a number of people for target shooting. 140 CONG. REC. S1864-01, S1872 (daily ed. Feb. 28, 1989) (statement of James Jay Baker).
147. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement of Sen. Hatch).
148. Edgar A. Suter, M.D., "Assault Weapons" Revisited - An Analysis of the AMA Report, J. MED. ASSOC. GA 281-289, May 1994.
149. See 140 CONG. REC. S1864-01, S1871 (daily ed. Feb. 28, 1989) (statement of James Jay Baker). 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement of Sen. Hatch).
150. 140 CONG. REC. S12557-01.
151. 140 CONG. REC. S12557-01, S12561 (daily ed. Aug. 25, 1994) (statement Sen. Stevens).
Two Georgia men, attacked by two criminals armed with shotguns, thwarted a criminal attack by turning to his "large magazine" semiautomatic weapon. It was this would-be victim's belief that if he had not had his gun he and his fried would likely be dead today. Bryan Rigsby letter of January 5, 1994. Gary Kleck, Ph.D., The Orange County Register, Sept. 19, 1993.
152. Suter, supra note 149.
153. "God made men, but it was the Colonial Colt that made them equal." Massad F. Ayoob, ARMED AND ALIVE, Publication by the Second Amendment Foundation. Gun control advocates believe that arms in the hands of the general populace will only act to increase individuals taking the law into their own hands. What they fail to consider is that even if a citizen is forced to use a gun in self-defense against a would-be attacker, the law is better served by preventing an attack than by dealing with the consequences after it has already happened. Gun owners alike would most likely admit that a gun is only to be used for self-protection when there is no alternative. In today's increasing litigation frenzy, people are less likely to kill the criminal, rather than merely using the gun to halt the attack. However, they would also likely argue that if push came to shove "it is better to be judged by 12 than to be carried by six." Id.
154. These weapons are not more effective in killing humans. More specifically, a feature such as a bayonet mount has nothing at all to do with the ability or capacity of fire of a weapon.
Supporters of this bill, while they had the opportunity, could have demonstrated the comparison between the rate of fire of the banned weapons and those exempted under the bill in order to show that the assault weapons have a higher rate of fire, but they did not. The reason being that they could not demonstrate such. 140 CONG. REC. H3063-05, H3068 (daily ed. May 5, 1994) (statement Rep. Schiff).
155. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement Sen. Hatch).
156. Morgan and Kopel, supra note 5, at 13.
157. The incident in Stockton, California could have been much worse if Patrick Purdy had used a shotgun rather than an AK-47 because the survival rate of a wound from an AK-47 is higher than that from a shotgun wound. The AK-47 is a high velocity gun with correlates with low accuracy. Sekerak, et al., supra note 122, at 3.
158. Morgan and Kopel, supra note 5, at 13.
159. 135 CONG. REC. S1873 (daily ed. Feb. 28, 1989). See Morgan and Kopel, supra note 5, at 13.
160. Id.
161. 140 CONG. REC. H3063-05, H3077 (daily ed. May 5, 1994) (statement of Rep. Sensenbrenner).
162. See 140 CONG. REC. H3063-05, H3076 (daily ed. May 5, 1994) (statement of Rep. Brooks).
163. 140 CONG. REC. H3063-05, H3082 (daily ed. May 5, 1994) (statement of Rep. Unsoeld).
164. Morgan and Kopel, supra note 5, at 12.
165. 140 CONG. REC. S1864-01, S1870 (daily ed. Feb. 28, 1989) (statement of James Jay Baker).
166. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement of Sen. Hatch).
167. 140 CONG. REC. S1864-01, S1870 (daily ed. Feb. 28, 1989) (statement of James Jay Baker).
168. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement Sen. Hatch).
140 CONG. REC. H3063-05, H3065 (daily ed. May 5, 1994) (statement Rep. Solomon). Some estimate that at least 180 firearms will be banned by this legislation with the possibility of the banning of hundreds more. 140 CONG. REC. H3063-05, H3072 (daily ed. May 5, 1994) (statement of Rep. Stearns).
169. Id. (12558-Hatch) The ban would include weapons such as the Springfield M1A rifle which is used for competition and the Colt AR-15 which is used often for hunting. Id.
170. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement Sen. Hatch).
171. Id. (12558-Hatch) Although 670 hunting and recreational shotguns and rifles are exempt under this legislation, of that number 586 of them are not even semiautomatic weapons. 140 CONG. REC. H3063-05, H3072 (daily ed. May 5, 1994) (statement of Rep. Stearns).
172. Id.
173. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement Sen. Hatch).
174. 140 CONG. REC. S12557-01, S12558 (daily ed. Aug. 25, 1994) (statement Sen. Hatch).
175. Udulutch, supra note 16, at 51.
176. Morgan and Kopel, supra note 5, at 13.
177. Id. In fact, Detective Jimmy Trahin of the Firearms/Forensics Unit of the Los Angeles Police Department testified on February 13, 1989 before the California State Assembly that these guns "are not easily and readily convertible." Id.
178. Criminals will continue to obtain these guns and continue to commit crimes whether there is a selective ban or no ban on these types of guns. 140 CONG. REC. H3063-05, H3067 (daily ed.
May 5, 1994) (statement of Rep. Goss). "Most prisoners in Stillwater would have little trouble obtaining any firearm they wanted out on the street." Gordon Grilz, Advice From Behind the Bars, LAW & POLITICS, August, 1994.
179. 140 CONG. REC. H3063-05, H3067 (daily ed. May 5, 1994) (statement of Rep Goss), H3067 (statement of Rep. Ewing). In fact those cities which have some of the strictest gun laws on the records also have some of the highest incidents of gun related violence. Id. at H3067.
180. See 140 CONG. REC. S12557-01, 12558 (daily ed. Aug. 25, 1994) (statement of Sen. Hatch). See Morgan and Kopel, supra note 5, at 33.
181. James D. Wright, Second Thought About Gun Control, in THE GUN CONTROL DEBATE: YOU DECIDE 93-107, 95 (1980).
182. Id. Guns are still winding up in the hands of criminals in Minnesota despite strict gun laws.
According to a study conducted by the Saint Paul Pioneer Press, although half the firearms used in homicides in Minnesota could be traced to legal purchases, nearly 1 out 4 weapons was obtained through the black-market. Charles Laszewski and Jeffrey Kummer, ST. PAUL PIONEER PRESS, September 12, 1994, at A1. Since many of these guns are purchased through illegal means, then what is the solution? According to Hamline University School of Law, Professor Joe Olson, "the laws should target those who use firearms to commit crimes, rather than attempting to restrict the sale and possession of guns among law-abiding citizens." Id. at 5A. Professor Olson further stated that, "'All the gun control we have is virtually useless.' You can control me, and it won't do any good.
You have to control those acting out."' Id. So why the push for a ban on "assault weapons" in Minnesota? The answer; the police don't even know. According to Sgt. Sherman Weaver, a firearms instructor for the St. Paul Police Department, "It's the assault weapons and such that everybody gets all up in arms about, but crooks aren't going out and buying .50 caliber Desert Eagles or machine pistols." Id. "It's the kind of cheap [like the Raven .25 caliber semiautomatic] guns that are the dangerous one's." Id. According to the article, the top ten guns seized most often by police are as follows: 1) .38 caliber Smith & Wesson (revolver); 2) . 25 caliber Raven (semiautomatic); 3) .357 caliber Smith & Wesson (revolver (; 4) .22 caliber Ruger (revolver); 5) .38 caliber Colt (revolver); 6) .22 caliber H & R (revolver); 7) .32 caliber H & R (revolver); 8) .38 caliber Taurus (revolver); 9) .22 caliber Jennings (semiautomatic); and 10) 9 mm Smith & Wesson (semiautomatic). Id. at 9A.
183. Morgan and Kopel, supra note 5, at 33.
184. "Afghan peasants, using tools considerably inferior to those in the Sears catalogue, have built fully automatic rifles capable of firing the Soviet AK-47 cartridge." Id. at 33.
185. Id.
186. Id.
187. Morgan and Kopel, supra note 5, at 34. A Los Angeles member of the Crips Four Trey Gang stated that, "Well, a gun is illegal...So what?...Everything [gangs] do is illegal." Gang members will not suffer from this ban because this bill potentially disarms average law-abiding citizens, would be potential gang victims and most importantly it gives gangs another illegal good in which to deal. Id.
188. 140 CONG. REC. H3063-05, H3073 (daily ed. May 5, 1994) (statement of Rep. Buyer).
189. Loomis, supra note 41, at 162.
190. Most state gun laws place restrictions on minors obtaining firearms.
191. In testimony before the House, one representative stated, "Last weekend an offensive event took place in my hometown; the Ku Klux Klan held a rally. While I was offended by their presence and despise their brand of hate mongering, I will defend their right to exercise their first amendment freedoms." 140 CONG. REC. H3063-05, H3079 (daily ed. May 5, 1994) (statement of Rep. Strickland).
192. The freedoms embodied in the Constitution were established in order to protect the freedoms of the minority from the tyranny of the majority. 140 CONG. REC. H3063-05, H3079 (daily ed. May 5, 1994) (statement of Rep. Strickland).
193. 140 CONG. REC. S1864-01, S1866 (daily ed. Feb. 28, 1989) (statement of William Pattison). Sarah Brady has been cited as stating that, "Our task of creating a socialist America can only succeed when those who could resist us have been totally disarmed." 140 CONG. REC. H3063-05. H3071-H3072 (daily ed. May 5, 1994) (statement of Joel Carlston). Such a result is exactly what the Framers of the Second Amendment sought to prevent. James Madison stated, "Americans need never fear their government because of the advantage of being armed. . ." Id.
194. 140 CONG. REC. H3063-05, H3065 (daily ed. May 5, 1994) (statement of Rep. Solomon). "This bill is a very good first step toward what I hope will one day be a more comprehensive Federal system of gun control legislation..." H3068 (statement of Rep. Nadler).
Once this bill is passed gun control advocates "are not going to fold their tents and go home satisfied. They are going to be back wanting more and more and ever more restrictions on guns." H3070 (statement of Rep. Bunning).
195. 140 CONG. REC. H3063-05, H3104 (daily ed. May 5, 1994) (statement Rep. Rogers).
196. THE FAILURE OF GUN CONTROL, A TASK FORCE REPORT TO THE PRESIDENT OF THE UNITED STATES, THE U.S. CONGRESS AND THE AMERICAN PEOPLE (1989). What this Bill asks is that Americans give up part of their freedom, but what are they receiving in return? 140 CONG. REC. H3063-5, H3067 (daily ed. May 5, 1994) (statement Rep. Goss).
197. 140 CONG. REC. S12557-01 (daily ed. Aug. 25, 1994) (statement of Sen. Hatch).
198. 140 CONG. REC. H3063-05, H3065 (daily ed. May 5, 1994) (statement Rep. Solomon), H3067 (statement of Rep. Goss).
199. Id. "Sixty-five million law-abiding gun owners are not the cause of crime, denying them their rights is not the solution." 140 CONG. REC. H3063-05, H3089 (daily ed. May 5, 1994) (statement of Rep. Brewster).
200. 140 CONG. REC. H3603-05. 140 CONG. REC. S12557-01, S12560 (daily ed. Aug. 25, 1994) (statement of Sen. Stevens).
201. 140 CONG. REC. S12557-01, S12560 (daily ed. Aug. 25, 1994) (statement Sen. Stevens). While many members of the Senate pushed for tougher criminal penalties, others instead merely wanted to talk about guns. Id.
202. 140 CONG. REC. S1864-01, S1870 (daily ed. Feb. 28, 1989) (statement of John M. Snyder).
203. 140 CONG. REC. H3603-05.
204. 140 CONG. REC. H3063-05.
205. His criminal record consisted of robbery, receipt of stolen property, criminal conspiracy, possession of illegal weapons, and assault of a police officer. These however were reduced to mere misdemeanor offenses. David B. Kopel, Hold Your Fire Gun Control Won't Stop Rising Violence, 63 POL'Y REV. 1, 5 (1993).
206. Id.
207. Id. "The fault in the Purdy case-and in almost all of these sensational headline cases-is that the culprits should have been in jail-and would have been in jail. The way to safeguard against such tragedies is not to ban the firearms of law-abiding people-but to see that people like Purdy do not get the chance to commit such horrible acts." 140 CONG. REC. S1864-01, 1869 (daily ed. Feb. 28, 1989) (statement of John M. Snyder).
208. 140 CONG. REC. E889-02 (daily ed. May 11, 1994) (statement of Hon. Neil Abercrombie).
140 CONG. REC. H3063-05, H3084 (daily ed. May 5, 1994) (statement of Rep. Johnson), H3091 (statement of Rep. Roukema).