American Journal of Criminal Law (Texas)
Note, 17 (1990): 143.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
Assault Rifle Legislation: Unwise and Unconstitutional
In the wake of tragic shooting incidents involving semiautomatic rifles, the media has discovered an "assault weapon" problem in the United States. Time magazine subtitled its. February 6, 1989 cover story "America's streets become free-fire zones as police, criminals, and terrified citizens wield more and ever deadlier guns."1 The story included pictures of the coffins of the victims of the Stockton "massacre," as well as a timeline chart entitled, "Calendar of senseless shootings." As a dramatic climax, the article reproduced a photograph of a police officer holding up the "assault rifle" used by Patrick Purdy to fire into the yard of a Stockton, California school.[2] The Time reporters, caught in the emotion of the Stockton shootings, promptly set out their agenda of "what should be done" about the "assault weapon" problem. Their first proposal was, of course, that "the Federal Government should ban outright the import or sale of paramilitary weapons to civilians."[3]
Reporters covering the Stockton shootings placed the blame for this tragic event on the semiautomatic weapons misused during the course of the shootings. Patrick Purdy killed himself, and it remains far easier to damn the inanimate objects that he left behind than to cope with the general social problems surrounding such incidents or the more specific criminality of a disturbed individual. However, understandable media and public sympathies have generated an unwise legislative response to the alleged "assault weapon" problem. On the federal, state, and local levels, legislators have hastily drafted and passed bills concerning "assault weapons," particularly when such efforts have been cast as being "anti-drug."[4] [Page 144]
It is the purpose of this note to show that, first, legislation of this "anti-assault weapon" genre is unnecessary and will be ineffective. Second, this note will argue that, even if legislatures choose to pass such unwise legislation, the results of their efforts will be unconstitutional. Third, this note will propose solutions to the problems associated with the criminal misuse of semiautomatic firearms.
I. THE UNWISE LEGISLATIVE RESPONSE
A. Federal, State, and Local Legislation
Several members of Congress have sponsored bills to correct the perceived "assault weapon" problem.[5] Senator DeConcini's proposed "Anti-Drug Assault Weapons Limitation Act of 1989," ( "S. 747"), is fairly typical of many legislative efforts. S. 747 would ban transfer, importation, or possession of any "assault weapon." "Assault weapon" is defined as any of nine types of semiautomatic firearms, including "all models" of the Avotomat Kalishnikovs, commonly referred to as "AK-47 S."[6] This prohibition does not apply to any lawful possession of such a weapon before the effective date of the law so long as the owner complies with a further registration requirement.[7] Knowing failure to register such an "assault weapon" is punishable by a $1,000 fine and/or six months in prison.[8] Use of an "assault weapon," a defined in the bill, in the commission of a crime of violence or a drug [Page 145] trafficking crime carries a ten-year punishment in addition to the punishment for the commission of the underlying offense.[9]
Other legislation on the federal and state level has attempted to define "assault weapon" by magazine capacity, military styling, or, as in S. 747, by the brand name.[10] State and local efforts have been passed more hastily. For example, California now has both state and municipal ordinances in place to address the alleged "assault weapon" problem.[11] Even so, little evidence exists that state legislation, or Congressional action on bills like S. 747, is necessary or will be effective.
B. The Problem of Definition
Current legislation includes incorrect and misleading definitions of the "assault weapons" that it targets. Indeed, definitional problems in bills such as S. 747 are so serious that they would result in the failure to remove any particularly dangerous class of weapons from the public sphere.
Semiautomatic weapons require that the shooter pull the trigger for each shot fired. After each shot, the gasses produced by the ignition of a cartridge cycle the action and chamber another cartridge. When the shooter pulls the trigger again, the same "self-loading" occurs, and the firearm is again ready for firing.[12] Semiautomatic rifles were prevalent in the early 1900's, and until the Second World War were [Page 146] usually chambered for large cartridges that were effective at long ranges but generated tremendous recoil.[13]
Fully automatic weapons, or "machine guns," employ the same sort of self-loading action as semiautomatic weapons, but they do not require a pull of the trigger for each shot. Machine guns will discharge every round in the magazine as long as the trigger is depressed. Until the 1950's, hand-held machine guns were primarily chambered for small pistol cartridges that were effective at short ranges and generated controllable amounts of recoil at high cyclic rates of fire.[14]
During the Second World War, strategists envisioned a new type of rifle that would have the advantages of both semiautomatic and fully automatic designs. Firearms engineers realized that such a weapon would have to use a medium-sized cartridge that would have longer effective ranges than the traditional machine-gun cartridge but would still generate controllable levels of recoil.[15] The Germans won the race to introduce this new "assault rifle." In 1942, as Soviet troops surrounded the crack unit Kampfgruppe Scherer, German aircraft dropped in crates of the new Maschinerkarabiner 42 (Mkb 42).[16] These rifles chambered the mid-size 7.92 x 33 millimeter cartridge and had a selector switch that allowed soldiers to use them either as fully automatic or semiautomatic weapons.[17] The Kampfgruppe shot its way out of the trap with the new Mkb 42's, and military experts around the world began to note the merits of selective fire assault rifles[18] In 1947, the Soviet Union accepted Colonel Mikhail Kalashnikov's design for an assault rifle. This Avotomat Kalashnikova of 1947 (AK-47) chambered the medium-sized 7.62 x 39 millimeter cartridge. This weapon, at the flip of a selector switch, operated in either a fully or semiautomatic [Page 147] mode.[19] Many other nations, including the United States, rushed to produce assault weapons that also employed, medium-sized cartridges that had this selective fire capability.[20]
Private citizens in the United States cannot purchase any of these assault weapons because they are capable of fully automatic fire. Weapons capable of fully automatic machine gun fire have been regulated heavily in the United States since 1934 and private sale or possession of these weapons has been completely banned since May, 1986. [21]
Many firearms manufacturers have offered semiautomatic-only copies of military rifles for civilian use.[22] These rifles provide civilian owners with all of the benefits of new, highly-reliable designs without illegal, fully automatic capability.[23] These military-style semiautomatics have been mislabeled as "assault weapons" by legislators attempting to bring about greater regulation of the ownership of semiautomatic firearms.[24] For example, Senator DeConcini included a section in S. 747 defining nine base types or patterns of semiautomatic firearms as "assault weapons."[25] Seven of the categories of weapons include rifles, two of the categories include pistols, and one category includes shotguns.[26] In labeling any of these firearms "assault weapons" the bill's definitional section is misleading. [Page 148]
Senator DeConcini's nine types of assault weapons are not assault weapons at all; these weapons are only capable of semiautomatic fire.[27] This definitional problem is more than a semantic quibble because it can limit any possibility that the so-called "assault weapon" legislation will alleviate the problems targeted in its passage. Legislating against semiautomatic firearms that happen to look like military weapons does not draw any meaningful distinctions between those firearms that are banned as "assault weapons" and those that are not.[28]
1. The Lack of Functional Distinctions¾Little functional difference exists between military look-alike semiautomatic firearms and semiautomatic firearms of a more traditional design.[29] both styles of weapons are self-loading and capable of firing similar types of cartridges.[30] Some bills, such as Senator Howard Metzenbaum's S.386, have tried to use magazine capacity in distinguishing between acceptable semiautomatics and "assault weapons."[31] However, a distinction [Page 149] based on the ability of a weapon to accept a large magazine is pointless because any weapon capable of accepting a box magazine can utilize a magazine of indeterminate capacity.[32] A distinction based on the size of magazines commonly used in a firearm is also meaningless.[33] Since it requires only about 1.5 seconds to change a magazine, no reason exists to believe that, for example, a weapon with two fifteen round magazines is functionally distinguishable from one equipped with three ten round magazines.[34]2. Not Distinguishable in Dangerousness¾Firearms deemed "assault weapons" in current bills are no more dangerous than many other firearms that these bills do not regulate.[35] As Congressional testimony indicated, common hunting shotguns that are not even semiautomatic are potentially more lethal when misused than military-style semiautomatics.[36] The Winchester Model Twelve "pump" shotgun can fire six "00 buckshot" shells, containing large, .33 caliber shotgun bullets, in three seconds.[37] Since each "buckshot" shell contains twelve of these .33 caliber bullets, the non- semiautomatic Winchester shotgun can fire seventy-two potentially lethal bullets in three seconds.[38] The Remington Model 1100 12-gauge shotgun is a popular semiautomatic duck hunting gun,[39] and it can dispatch 72 buckshot bullets in two and one half seconds.[40] The rate of fire of a semiautomatic copy of the AK-47 is forty shots per minute.[41] Either the Model 12 or the Model [Page 150] 1100 shotguns, neither of which is currently considered an "assault weapon," is potentially more dangerous than the proscribed weapons that have a more evil-looking "military" styling.[42] As Los Angeles County Sheriff Sherman Block stated, "Semiautomatic assault weapons in their present legal incarnations are not inherently more deadly than their more conventional hunting-style cousins."[43] Current legislation that attempts to ban these improperly defined classes of "assault weapons" will not remove any unusually dangerous weapons from the public sphere.
C. Anti-Assault Rifle Statutes are Unnecessary
Legislatures have expressed several common motivations in passing statutes restricting military "look-alike" semiautomatic rifles. Senator DeConcini, in introducing S. 747, claimed that assault weapons were the "weapons of choice" of gangs and drug dealers, and suggested that his bill would reduce the "carnage" created by individuals engaged in the illegal drug trade.[44] Indeed, the stated purpose of S. 747 is to "reduce the number of deaths and injuries attributable to assault-type semi-automatic firearms abuse by drug traffickers and violent criminals."[45] With a similar flourish, the California legislature passed the "Roberti-Roos Assault Weapons Control Act of 1989," a more extensive ban than S. 747, after finding that rapid-fire assault weapons [Page 151] are "a threat to the health, safety, and security of all citizens of this state.[46]
While such attempts to address drug and crime problems are certainly well-meaning, little evidence exists that assault weapon statutes are necessary to protect the public from drug-related violence or other criminal activity. Semiautomatic military-style rifles, though sinister in appearance, are simply not the "weapons of choice" of criminals and drug dealers.
1. Empirical Evidence Fails To Support the Legislative Response¾In Los Angeles, of the 4,000 or more guns seized by police during 1988, only three percent would fall under even an expansive definition of "assault weapon."[47] Only 2.2% of the firearms confiscated in San Francisco in 1988 were military-style semiautomatics.[48] Assault weapons comprised one percent of the 4,800 firearms seized by the San Diego police during 1988, and were involved in only eight of the cities 144 homicides.[49] Police in Akron, Ohio seize about 400 weapons a year, and only two percent of these could arguably be classified as assault weapons.[50]In New York City and Washington, D.C., two areas of the country with notorious crime and drug problems, empirical evidence comports with the evidence available from other cities. New York City police statistics reveal that of the 16,370 guns seized in New York in 1988, only 1,028 of them were rifles of any type, and no doubt even fewer would fall under S. 747's definition of "assault weapon."[51] Of the 3,000 or more weapons that the Washington, DC police confiscated in 1988, not one was an assault rifle.[52] [Page 152]
National statistics accord with the low number of assault rifles confiscated in large cities. Four percent of all homicides in the United States involve rifles of any type, and less than half of one percent of those rifles could be considered military look-alike semiautomatic rifles.[53] In fact, according to 1987 FBI Uniform Crime Reports, Americans are far more likely to be killed by a knife or a blunt object instead of by a rifle of any type.[54] While they may appear menacing, both local and national crime statistics do not indicate that the so-called "assault rifles" are a serious crime or drug problem.
2. The Experience of Law Enforcement Officers¾The practical "street" experience of police officers supports the empirical evidence: assault rifles are not the "weapons of choice" of criminals or drug dealers. According to George R. Wilson, the chief of the firearms section of the Washington, DC Metropolitan Police, drug dealers most commonly use sophisticated nine millimeter pistols.[55] Lieutenant Reginald Smith, a spokesman for the District's police department stated, "We see (an assault rifle) occasionally, but it's rare. The vast majority of weapons we see are revolvers or pistols."[56] Detective Jimmy L. Trahin of the Los Angeles Police Department's Firearms/Ballistics Unit testified before Congress that he did not consider assault rifles to be the weapons of choice of L.A. criminals.[57] These rifles also do not seem to be the weapons chosen for highly-publicized LA gang killings. V.G. Gunises, whose SEY YES organization in South Central Los Angeles works to help former gang members, pointed out that most Los Angeles gang killings involve handguns.[58] Lieutenant James Moran, the commander of the New York City Police Department Ballistics Unit, told reporters that N.Y.P.D. experience was quite different from some press claims. "A rifle is not what is usually used by the criminals. They'll have handguns or sawed off shotguns. . . . These drug dealers are more inclined to use the 9 mm pistol than go to a cumbersome AK-47 rifle."[59] [Page 153]Senator DeConcini's S. 747 is not the vehicle for denying drug dealers their "weapons of choice." Empirical evidence and the practical experience of law enforcement officers demonstrates that the firearms regulated in bills like S. 747 are not a substantial threat to public safety. While the press can easily rouse hysteria about evil looking "assault rifles," no evidence exists to show that banning these weapons will alleviate any of the- problems such legislation purports to address.
D. Anti-Assault Rifle Legislation Will Be Ineffective
Even if legislators remain convinced that there is an "assault weapon" problem, bills such as S. 747 will not effectively limit criminal misuse of military-style semiautomatics.
1. Criminal Misuse Will Not Be Affected¾Statutes such as a S. 747 may not be able to prevent criminals from obtaining and misusing certain military-style semiautomatic weapons. Testimony before Congress revealed that most "assault weapons" in the hands of criminals were obtained through illegal channels.[60] This testimony is consistent with the findings of research done by Tulane sociologist James D. Wright.[61] Wright found that only sixteen percent of handguns used by criminals during the course of criminal activity were obtained "through methods and sources likely to be concerned about the legality of the transaction."[62] Not surprisingly, Wright believes that the consequences of current "assault weapon" legislation on street violence "are likely to be nil."[63] The firearms at issue in the "assault weapon" debate will be those of the only group whose conduct will be affected¾those of law-abiding citizens.[64] [Page 154]The experience of the streets seems to agree that current attempts to ban assault weapons, while well-intentioned, will not have the effect of curbing the drug and gang violence disturbing legislatures. When asked about the effects of the recent Los Angeles ban on certain types of "assault weapons," Crips Four Trey gang member Rick (Li'l Loc 2) Hardson stated, "Well, a gun is illegal . . . So what? ... Everything [gangs] do is illegal.[65] Social workers who work with gang members and some LA police officers also seem to doubt the effectiveness of the recent LA ban.[66] Given the current social context of firearms misuse, it seems unlikely that any "assault weapon" legislation will be effective in curbing criminal misuse of proscribed firearms.[67]
2. Even Proposal of Legislation Has Been Counterproductive¾Beyond being merely ineffective¾albeit well-meaning¾some evidence suggests that current proposals to ban "assault weapons" have encouraged consumers to buy military-style semiautomatic firearms.[68] The press hype surrounding so-called "assault weapons" has generated a greater demand for the weapons as well as large price increases.[69] If one goal of such legislation is to limit the proliferation of certain firearms, recent efforts have been no less than counterproductive.
E. Legitimate Uses for Firearms Labeled "Assault Rifles"
Even if current legislative efforts were somehow workable, military style semiautomatic firearms have legitimate uses that deserve protection. The Bureau of Alcohol, Tobacco, and Firearms ("BATF") has repeatedly recognized the "legitimate sporting purpose" of military style semiautomatic rifles.[70] The 1968 Gun Control Act prohibited firearms from being imported into the U.S. unless they were "generally recognized as particularly suitable for or readily adaptable to sporting purposes."[71] BATF has certified that weapons banned by S. 747, such [Page 155] as the AK-47 military look-alike rifles, were suitable for sporting purposes and could therefore be imported.[72] Though the standards for importation have now changed with the emotion of the "assault-rifle" scare, such military-style semiautomatic rifles have maintained a much deserved appeal for several legitimate purposes.
1. Attractive Attributes of So-Called "Assault-Rifles"¾As the BATF recognized, military style semiautomatic weapons have several characteristics that have made them popular with American sportsmen. First, these rifles have a greater immunity to weather conditions and abuse than more traditional hunting rifles.[73] A semiautomatic copy of the AK-47 can be dropped in the mud, drug through brush, and can withstand the rigors of cold or hot hunting climes.[74] Second, many rifles such as the AK-47 look-alikes use high-performance ammunition that is well-suited to hunting medium-sized game at reasonable ranges.[75] Finally, military style semiautomatic rifles such as the AK-47 copies are capable of sterling accuracy that makes them valuable as target or hunting rifles.[76] These firearms are the latest "high performance" rifles on the market, and this has left many sportsmen profoundly impressed with their potential.
2. Sporting and Other Uses¾Firearms styled after military weapons have been the favorites of sportsmen throughout United States history and semiautomatic rifles of military design are no exception.[77] [Page 156] These rifles are useful for hunting and other recreational activities.[78] Hunters have often used military-style semiautomatics such as the Colt AR-15.223 or Ruger Mini 14.223, and these rifles are legal to hunt with in 48 states.[79] The Ruger and Colt are particularly popular as ranch or "varmint" rifles.[80] However, under current proposals, one or both would be banned as "assault rifles."[81]Military-style semiautomatics are also very popular target rifles.[82] The Colt AR-15, labeled an "assault weapon" under S. 747, is used every year in national target matches in Camp Perry, Ohio.[83] Given their long-distance accuracy, AK-47 look-alikes are also rifle range favorites.[84] Since military-style semiautomatics are rugged, high-performance rifles, they are well-suited for use by citizens as militia sidearms.[85] Citizens of the United States have used such personal sidearms to aid law enforcement officials in restoring public order on several occasions.[86] In 1977, a blizzard in Buffalo, New York and a flood in Johnstown, Pennsylvania both prompted local officials to call for citizens to arm themselves and restore the public order.[87] While the possibility of invasion or civil war may seem remote in 1990, fifty years ago several governors called on citizens to take up arms and prepare to defend the United States.[88] [Page 157]
So-called "assault rifles" are also properly used to protect the person and property from modern renditions of ancient violent crimes.[89] Law enforcement officials testified before Congress that semiautomatic firearms are "often essential for self defense."[90] Chief Gerald Arenberg, executive director of the National Association of Chiefs of Police, pointed out that Gulf Coast boat owners have been buying semiautomatic Uzis in response to the violence of drug smugglers. Smugglers have frequently commandeered pleasure boats after pulling alongside and murdering passengers with illegal, fully automatic military weapons.[91] The Chief stated that highly reliable military look-alikes such as the Uzi might be "essential" for surviving such encounters.[92] In the home the menacing looks and intimidating cocking, sound of a semiautomatic AK-47 copy might be enough to give pause to even the most determined criminal.[93] However, bills like S. 747 would ban the purchase of semiautomatic versions of the Uzi and AK-47.[94] Ironically, such bills might only succeed in removing the best defense that law-abiding citizens have against modem criminal violence.
F. Public Opinion
Proponents of bills such as S. 747 have justified current legislation by referring to the results of national polls.[95] Public opinion polls do seem to indicate that Americans favor restrictions on "assault weapons."[96] in the weeks following the Stockton schoolyard shootings, a Gallup poll of 1000 adults showed that seventy-two percent believed that the Federal Government should ban the sale of assault rifles in the United States.[97] In April 1989 an NBC/Wall Street Journal poll found that seventy-four percent of Americans believed that "the federal government should ban the sale of assault rifles in the United States.[98] [Page 158]
It is difficult to interpret these poll results because the press and public seem confused about the definition of "assault rifle." Time magazine's February 6, 1989 cover story provides an excellent example of the problem. The story includes a chart entitled "Street Favorites: Assault Weapons Available Over the Counter."[99] The first entry is the "AK-47" and readers are told that the AK-47 is "Soviet designed, adopted by armed forces in many nations."[100] The chart does not tell the reader whether it is addressing semiautomatic-only. copies of the AK-47, or the fully automatic AK-47 military rifle. If the reporters meant to discuss the true, fully automatic assault rifle, this weapon has been banned since 1986 and is not "available over the counter."[101] If the reporters meant the semiautomatics designed to look like the AK47, this rifle has not been "adopted by armed forces in many nations" because it does not have fully-automatic capability.[102]
Some lobbyists are overjoyed that Americans may think "assault rifle" legislation bans fully automatic machine guns. In a recent pamphlet the Educational Fund to End Handgun Violence 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.[103]
As several Senators noted, attaching the label "assault weapon" to certain semiautomatic firearms was a brilliant stroke.[104] Members of Congress, like Gary Ackerman of New York, may fall into this, carefully laid trap when S. 747 comes to a vote. In House "assault weapon" debate, Ackerman actually asked whether hunters needed "a Mac 10 machine gun with 30 round banana clips of armor piercing bullets to bag a quail?"[105] Both armor piercing bullets and machineguns are heavily regulated and are not the subject of current "assault weapon" legislation. [Page 159]
Before proponents of S. 747 claim that public opinion supports their bill, they need to demonstrate that this support is more than just confusion over what "assault weapon" statutes do as well as confusion over what an "assault weapon" is. If public opinion does not support the true objectives of these bills, Americans' views may change as definitional problems become more apparent.[106]
G. Costs
The true costs of S. 747, just like the depth of public support for this bill, may be difficult to assess. The Committee on the Judiciary Report on S. 747 did include a letter from the Congressional Budget Office that concluded that Senator DeConcini's bill would "result in no significant additional costs to the Federal Government, and would " have no significant effect on Federal revenues."[107]
However, several senators noted that the cost to the federal government is only one relevant cost that should be considered in appraising the burdens of a bill.[108] Congressional testimony revealed that there are currently 600,000 firearms in the United States that will have to meet S. 747's registration requirements.[109] The cost of distributing registration papers to owners will significantly burden consumers and may bankrupt some firearms dealers.[110] S. 747 will also "cost" Americans access to highly reliable firearms used for legitimate purposes across the United States. Most significantly, S. 747 may cost Americans freedoms guaranteed by the Bill of Rights. "Assault rifle" legislation such as S. 747 violates the second amendment.
II. ASSAULT RIFLE LEGISLATION IS UNCONSTITUTIONAL
The second amendment of the United States Constitution states:
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.[111] [Page 160]
The debate over current gun control proposals has generated different theories about the meaning of this amendment.[112] Advocates of gun control legislation often espouse a "collective rights" interpretation of the second amendment, while opponents of gun control legislation adhere to an "individual rights" theory.[113]
Under the collective rights interpretation, only a state's well-regulated militia possesses any right to bear arms. "Militia" is usually defined as state police and national guard units.[114] Therefore, no individual citizen has a constitutional right to own a firearm.[115] The second amendment prohibits only the federal government from unduly burdening a state's effort to arm its National Guard units or its police forces. A recent law journal article highlighted the net effects of the collective rights approach. It stated that technically, . . . Congress could prohibit private ownership of all firearms without violating the second amendment."[116]
The "individual rights" theory of the second amendment grants each citizen of the United States the right to keep and bear arms.[117] Under this interpretation, federal or state governments would violate the second amendment by unduly burdening an individual's right to possess a firearm.[118] This note argues that the "right to bear arms" is an individual right and that this right extends to possessing military style semiautomatics. Current "assault rifle" legislation unduly burdens this right and is, therefore, unconstitutional.
A. The Individual Right to Bear Arms
Several federal courts have accepted the collective rights theory of the second amendment.[119] However, available historical evidence and the majority of second amendment jurisprudence supports the in- [Page 161] dividual rights view: each citizen has a constitutional right to bear arms.
1. The Framers' Intent¾In 1982, the Senate Subcommittee on the Constitution noted that when James Madison drafted the second amendment, he "did not write upon a blank tablet."[120] The English and Colonial history that predated the Bill of Rights affirmed an individual right, if not a duty, to own firearms.[121] The English background of the individual right to possess weapons dates back to the reign of King Alfred the Great in 690 A.D.[122] Under King Alfred, every free male was required by law to possess the weapons of an infantryman and serve in the citizen militia.[123] By the late 1600's, the English Bill of Rights declared that the people could "have arms for their defense," a guarantee of the individual right to possess firearms.[124]The English colonies in America quickly established an individual right. to bear arms that paralleled the developments in England.[125] In 1658, the Virginia House of Burgesses required every householder to have a functioning firearm.[126] Colonial recognition of the right, and duty, to bear arms eventually aided the effort to break with England. When the number of British soldiers increased in the colonies, colonists asserted their right to own firearms in order to defend their liberties.[127] As the New York Journal Supplement proclaimed in 1769, "It is a natural right which the people have reserved for themselves, confirmed by their Bill of Rights, to keep arms for their own defense."[128] The Revolutionary War strengthened the colonists' beliefs about the importance of an individual right to bear arms.[129]
After the successful revolution, the maintenance of a citizen militia was a primary concern of the framers of the Constitution.[130] General [Page 162] Washington's Inspector General, Baron Von Steuben, proposed a "select militia" of 21,000 that would be given government issue arms and special government training.[131] When the proposed Constitution was presented for debate, anti-Federalists complained that it would allow for the withering of the citizen militia in favor of the' virtual standing army of a "select militia."[132] Richard Henry Lee, in his widely-read Letters from the Federal Farmer to the Republican, warned ratifies that a select militia had the same potential to deprive civil liberties as a standing army. He believed that a constitution must insure that a general militia of the able-bodied citizenry guards the "solid interest of the community." Lee stated, "[T]o preserve liberty, it is essential that the whole body of the people always possess arms. . . ."[133]
Federalists promoting the new Constitution allayed fears of select militias and Congresses' broad powers to "raise armies" under Article 1, section 8. They claimed that Americans would have nothing to fear from either type of army since American citizens were universally armed.[134] Noah Webster, in the first major Federalist pamphlet, attempted to calm Pennsylvania anti-Federalists with this argument:
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States.[135]
James Madison, who later drafted the second amendment, noted in Federalist 46 "the advantage of being armed, which the Americans possess over the people of almost every other nation. . . .[136] He then chided the nations of Europe for being "afraid to trust their people with arms."[137]
Many convention delegates that ratified the Constitution expressed discontent over the Federalists' assurances about existing protection of the right to possess arms.[138] New Hampshire delegates passed the key ninth vote that ratified the Constitution after an assurance that a Bill of Rights would be drafted with a protection for the right of individuals [Page 163] to own firearms.[139] The delegates suggested that the new Bill of Rights provision be worded as follows: "Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion."[140] In the Virginia convention, Patrick Henry stated, "The great object is that every man be armed" and "everyone who is able may have a gun."[141] The Virginia convention demanded a Bill of Rights to protect the right of the people to bear arms with this type of wording: "That the people have a right to keep and bear arms; that a well-regulated militia composed of the body of the people trained to arms is the proper, natural, and safe defense (sic) of a free state."[142] During the ratification process five state conventions demanded similar protection of the right of citizens to bear arms.[143]
The first Congress delegated the duty of writing a Bill of Rights to James Madison. Madison obtained copies of state proposals and attempted to combine them in a succinct passage that all state delegates would accept.[144] Thus, the original intent of the second amendment remained consistent with the intentions of the states that demanded it. Indeed, it is ironic that "collective rights" theorists claim that the second amendment only vests rights in a states' police and National Guard. James Madison wrote the amendment in order to prevent the right to bear arms from vesting only in "select militias" like state National Guard units. The second amendment was written to secure an individual right to bear arms that provided an ultimate check on government and any of its "select" militias.[145]
2. The Structure of the Constitution and the Text of the Second Amendment¾The location of the second amendment within the Con- [Page 164] stitution further supports an individual rights interpretation. The second amendment was not placed with the militia clause in Article I, section 8, as collective rights interpretation suggests.[146] Instead, the framers placed the second amendment among other provisions that granted individual rights.[147]The wording of the second amendment suggests the same conclusion. As the Senate Subcommittee on the Constitution noted in 1982, "The Framers of the Bill of Rights consistently used the words 'right of the people' to reflect individual rights-as when these words were used to recognize the 'right of the people to peaceably assemble"' in the first amendment.[148] The second amendment contains this "right of the people" wording and creates an individual right.
3. Second Amendment Scholarship¾Several legal scholars who wrote during the early years of the Constitution's existence believed that the second amendment granted an individual right. In 1825, William Rawles noted in his "View of the Constitution" that, in light of the second amendment,No clause in the Constitution could by a rule of construction be conceived to give, Congress the power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[149]
Fifty years later, constitutional scholars like Thomas Cooley embraced the individual rights approach. Cooley wrote, "The meaning of (the second amendment) undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose."[150] Modem commentators, such as members of the Senate Subcommittee on the Constitution, agreed with Professor Cooley's analysis.[151] In a 1982 report the Subcommittee found that the "militia" referred to in the second amendment comprised the entire populace and not only select militias such as state national guard units.[152] [Page 165]
4. Case Law Interpretations
a. The United States Supreme Court¾The United States Supreme Court held in United States v. Cruikshank[153] that the second amendment, like other provisions of the Bill of Rights, does not restrict the power of state governments.[154] The Supreme Court also noted that the right to bear arms was an individual right. In Presser v. Illinois,[155] the Court stated,
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms. . . .[156]
In Dred Scott v. Sanford,[157] the Court-as it denied the citizenship of blacks-stated that granting citizenship to blacks would have the (presumably feared) effect of allowing them to "keep and carry arms."[158]
In 1939, the Supreme Court explicitly interpreted the second amendment. In United States v. Miller,[159] two defendants were charged under section 11 of the 1934 "National Firearms Act" with the unlawful transportation of an unregistered "sawed-off' shotgun in interstate commerce.[160] The United States District Court quashed the indictment on the grounds that section 11 of the National Firearms Act violated the second amendment.[161] The state appealed the decision, but the defendants disappeared and failed to file briefs with the Supreme, Court in support of the lower court decision.[162] Nevertheless, the Supreme Court employed an "individual rights" interpretation of the second amendment. Instead of defining the militia as a select group such as the National Guard, the Court defined "militia" as "all males physically able of acting in concert for the common defense."[163] The Court went on [Page 166] to note that the state expected this militia "to appear bearing arms supplied by themselves . . . ."[164]
Even though the Court recognized an individual right to bear arms, the justices still had to decide what types of "arms" individuals had a right to bear. The Court suggested that militia arms would consist of "the kind in common use at the time"[165] that had "some reasonable relationship to the preservation or efficiency of a well-regulated militia. . . ."[166] Since the defendants had not briefed this issue, the Court could not hold that the "National Firearms Act" violated the second amendment through the regulation of sawed-off shotguns. The majority wrote,
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the second amendment guarantees the right to keep and bear such an instrument. 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.[167]
Although the Court held that this particular case did not present a violation of the second amendment, the majority opinion did recognize the individual right to bear arms as evidenced by the original intention of the second amendment.
b. State Case Law¾State courts have often interpreted the second amendment of the United States Constitution and similarly worded state constitutional provisions.
1. Interpreting the Second Amendment¾Several state courts have found that the second amendment of the United States Constitution grants an individual right to bear arms. In an early case, the Georgia Supreme Court held that the broad wording of the second amendment kept state as well as federal legislatures from tampering with "[the right of the whole people, old and young, men, women and boys ... to keep and bear arms of every description, and not such merely as are used by the militia . . . ."[168]Two later state Supreme Court cases have also interpreted the second amendment as granting an individual right to bear arms. In [Page 167] State v. Nickerson,[169] the Montana Supreme Court held that the second amendment of the United States Constitution, as well as provisions in the Montana Constitution, granted an individual "the right to keep and bear arms and to use same in defense of his own home, his person and property."[170] In People v. Liss,[171] the Illinois Supreme Court noted that the second amendment protected the use of firearms by citizens "in the protection of person or property."[172]
2. Interpreting State Constitutions¾Many state constitutions have provisions similar to the second amendment of the United States Constitution.[173] State courts that interpret these provisions have often adopted an individual rights approach.[174] In a watershed 1871 case, the Tennessee Supreme Court noted that sections 24 and 26 of the Tennessee Constitution protected "the same rights" as the second amendment, "and for similar reasons."[175] The court further held that the Tennessee legislature could not inhibit a citizen's "right to purchase [arms], to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair"' nor prohibit a citizen's use of such arms for all the ordinary purposes and in all the ordinary modes.[176]
The second amendment of the United States Constitution furnished the wording for Article 1, section 24 of the North Carolina Constitution, and in State v. Dawson,[177] the North Carolina Supreme Court interpreted section 24 as granting both an individual and a collective right to bear arms.[178] Article 27 of the Oregon Constitution provides that the people shall have the right to bear arms for defence [sic] of themselves, and the State. . . ,"[179] and the Oregon Supreme Court held [Page 168] both in 1980 and 1981 that this provision gave individuals the right to bear arms for self-defense or militia purposes.[180]
Since these state constitutional provisions parallel the second amendment in both wording and historical background, state case law provides further support for an individual rights theory. When this state case law is considered alongside Supreme Court decisions, and the original intention of the framers, it seems clear that the second amendment grants an individual right to bear arms. However, a further step in the constitutional analysis of bills such as S. 747 exists.
B. "Assault Rifles" are Protected Arms
Proponents of current "assault rifle" legislation have argued that even if one recognizes an individual right to bear arms, military-style semiautomatics are not the type of arms that individuals have a right to bear. Although the framers might have intended that citizens have a right to possess the single-shot rifles, shotguns, and pistols of their day, proponents of assault rifle legislation argue that the second amendment never intended to give citizens the right to own modern small arms such as military-style semiautomatics.[181]
Judges that must interpret the second amendment, like those that must interpret the first and fourth amendments, must consider the implications of new technology. The framers of the Constitution could not foresee surface-to-air missiles, just as they may not have foreseen television, radio, or wiretapping. Courts have reassessed rights under the first and fourth amendments in light of the new technology, and found that new technology has not eliminated the rights protected by those amendments.[182] Under the second amendment, courts have [Page 169] created standards to address the development of new weapons technology and continued to protect the individual right to bear arms.
1. The Reasonable Relationship Test¾In Miller, the United States Supreme Court recognized an individual right to bear arms, but also stated that this right extends to those arms with "some reasonable relationship to the preservation or efficiency of a well regulated militia."[183] However, Miller does not specify the types of modem arms that would satisfy this standard. Fortunately, other courts have provided a framework for deciding which modern "arms" bear "some reasonable relationship to a well-regulated militia."[184]The Oregon Supreme Court noted, "the term 'arms' as used by the drafters of the constitution probably was intended to include those weapons used by settlers for both personal and. military defense . . . . The term 'arms' would not have included cannon or other heavy ordnance not kept by militiamen or private citizens."[185] As personal sidearms, the framers used single shot rifles, shotguns, and pistols; and they intended, no doubt, that the second amendment would protect the individual ownership of those types of firearms.[186] During the years that immediately followed the drafting of the Constitution, when single shot sidearms still predominated, courts protected absolutely the private possession of these sidearms without any qualification whatever as to their kind or nature.[187]
After the Civil War, courts addressed the implications of a developing weapons technology. The Civil War firmly established the popular use of repeating rifles and pistols as personal sidearms, and the Tennessee Supreme Court addressed this development. In the 1871 case Andrews v. State,[188] the court held that, although the Tennessee Constitution did not protect "every thing that may be useful for offense or defense," the Constitution did protect "the rifle of all description, the shotgun, the musket, and repeater."[189] In 1876, the Arkansas Supreme Court stated that protected "arms" included "the usual arms of the citizen of the country."[190] The court agreed with the Tennessee court's listing of these arms and noted the addition of the "army and [Page 170] navy repeaters, which, in recent warfare, have very generally superceded the old-fashioned holster, used as a weapon in the battles of our forefathers."[191] These early courts-without using the exact wording of the later Miller test¾found that personal sidearms, including new repeating firearms, fell within the reach of constitutional provisions drafted in times of more simplistic weapons technology.
In 1980, the Oregon Supreme Court approached more modem weapons developments in a similar manner. The court noted that since the era of the Civil War, the development of powerful explosives, . . . combined with the development of mass produced metal parts, made possible the automatic weapons, explosives, and chemicals of modem warfare."[192] It concluded that such modem heavy ordnance, used exclusively by the military, would not be considered individual "arms" deserving of constitutional protection.[193] To the Oregon Supreme Court, citizens possessed a right to own personal arms "commonly used" for individual defense or militia service.[194]
Miller and these state cases provide some guidance from which to ascertain what "arms" individuals have a right to bear. Clearly these protected personal "arms" are not a category that froze during the 1780's. Courts may constitutionally protect modem military-style semiautomatics just as they protected "repeating" rifles after the Civil War.[195] As Miller implied, modern weapons that bear "some reasonable relationship to a well-regulated militia" merit constitutional protection.[196] Relevant considerations for modern or old designs seem to include the following: (1) whether a type of firearm is a personal sidearm and not heavy ordnance used exclusively by the military, and (2) whether a type of firearm is commonly possessed by individuals as a sidearm for purposes of personal defense or potential militia service. These considerations provide guidance to courts in order to preserve individual rights while preventing modem-day heavy ordnance from threatening the public safety.
2. "Assault Rifles" Satisfy the Miller Test¾Military-style semiautomatic rifles are personal sidearms, and not "heavy ordnance" used exclusively by the military.[197] These so-called "assault rifles" assess [Page 171] the capability of semiautomatic fire, and they remain functionally indistinguishable from more traditionally-styled semiautomatic sidearms.[198] The military does not exclusively use either modern or traditionally-styled semiautomatics. American civilians have owned semiautomatics since the early 1900's, and currently an estimated twenty to thirty million own these firearms.[199] As discussed earlier in this note, modern, military-style semiautomatics are no more dangerous than many non- semiautomatic s currently available.[200] Empirical evidence and the experience of urban police indicate that these rifles do not have the serious consequences of military "heavy-ordnance" because they are not the weapons of choice of criminals or drug dealers.[201] Though these rifles may look sinister, "assault rifles" are merely the latest technology in personal sidearms, just as repeating rifles and pistols were the latest technology during the 1870's.
Many Americans own "assault-rifles" as sidearms for either personal defense or possible militia service.[202] As discussed earlier in this note, an estimated 600,000 firearms fall under the S. 747 definition of assault weapon."[203] Whether for use by Gulf-Coast yacht owners or citizens defending the home, these military-style semiautomatic rifles are highly reliable defensive arms. The same characteristics make military-style semiautomatic firearms ideal for militia training and use as well.
Of all the firearms on the market today, military-style semiautomatic firearms appear to be the individual "arms" with the clearest claim to protection under the second amendment. These firearms offer all of the advantages of modem, reliable military design, without the public safety threat of fully-automatic capability.[204] So-called "assault [Page 172] rifles" satisfy the Miller test by bearing "some reasonable relationship to the preservation of a well-regulated militia."
C. Undue BurdenCurrent legislative proposals unconstitutionally burden the individual constitutional right to own military-style semiautomatic rifles. S. 747, for example, prohibits the "transfer, importation, or possession" of any "assault weapon."[205] Those who lawfully owned these "assault weapons" before the effective date of the law must go through further registration requirements that may be difficult for them and many legitimate firearms dealers.[206] The severe restrictions, and outright bans, employed in bills like S. 747 clearly impose an undue burden on constitutional rights.
No compelling state interest exists that justifies such violations of individual rights. As discussed in Part I(C) of this note, "assault weapons" are not a peculiarly dangerous class of firearms, and are not frequently used in modem violent crime.[207] Given the evidence avail able, "assault rifle" legislation will have no effect beyond the infringement of the rights of law-abiding citizens.[208] The denial of these constitutional rights remains unacceptable, given the availability of less restrictive legislative alternatives.
III. PROPOSALS
The major concern of legislators passing "assault rifle" legislation is the criminal misuse of these firearms.[209] Proposed legislation, to be effective, must directly target this misuse. Legislators should consider the following proposals:
1. Fund the appointment of at least one Assistant U.S. Attorney in each District to prosecute felon in possession cases under 18 U.S.C. 922(g) and relevant sections of the Firearms Owners Protection Act, Public Law 99-308. More consistent enforcement of existing statutes would directly target criminal misuse of all firearms, particularly in the context of drug-trafficking offenses.[210] [Page 173]
2. Fund the creation of new minimum security and Level III prison facilities. Prison facilities must be adequate to insure that those convicted of the criminal misuse of firearms actually serve the sentences prescribed by statute.[211]
3. Create a task force that will exert informal pressure on the entertainment industry to encourage industry officials to reduce the portrayal of criminal misuse of military-style semiautomatic firearms. Beginning in 1983, prime-time television shows such as The A Team, Wise Guy, Hardcastle & McCormack, Riptide, 21 Jump Street, and Miami Vice have filled American homes with the depiction of criminal misuse of "assault weapons."[212] While direct links between these portrayals and criminal violence may be difficult to establish, at least one study has linked television and movie depictions of "assault weapons" to increased sales of those weapons.[213] Dr. Park Dietz, the specialist in violent behavior who conducted this recent study, called NBC's Miami Vice "the major determinant of assault gun fashion for the 1980's."[214]
A task force could draft voluntary guidelines limiting the depiction of the misuse of military-style semiautomatics, and the task force, along with interested citizens' groups, could exert informal pressure on industry officials to conform to these guidelines.
IV. CONCLUSION
"Assault Rifle" legislation such as S. 747 offers several political advantages. This legislation allows its proponents to appear "tough on crime and drugs" while they exploit the political potential latent in the emotion surrounding such tragic events as the Stockton shootings.
Unfortunately for its proponents, "assault rifle" legislation is unconstitutional. Second amendment jurisprudence establishes an individual right to bear arms that protects the possession of military-style semiautomatics. S. 747 and similar state legislation, would unduly burden this fundamental right.
Hopefully, legislators will table bills like S. 747 long before courts would have to sustain a constitutional challenge. Available evidence [Page 174] suggests that "assault rifle" legislation is simply unnecessary. Despite their "evil" appearance, military-style semiautomatics are no more dangerous than many non-semiautomatics. According to empirical evidence and police experience, "assault rifles" are not the weapons of choice of drug dealers or other criminals. Even if military-style semiautomatics played a significant role in violent crime, sociological evidence suggests that "assault rifle" legislation would not prevent the criminal misuse of these weapons.
To limit the criminal misuse of firearms, legislators must take the more difficult and costly steps of providing sufficient funding to the prosecutors and prisons that directly confront the problems of firearms misuse. While these measures may not seem as simple as S. 747, an effective firearms policy, as well as the preservation of basic second amendment rights, will be well worth the effort.
Eric C. Morgan
1. Church, The Other Arms Race, TIME, Feb. 6,1989, at 20.
2. Id. at 20, 22-23.
3. Id. at 26.
4. See, e.g., The Antidrug, Assault Weapons Limitation Act of 1989, S. REP. No. 160, 101st. Cong., 1st. Sess. 6-8 (1989) [hereinafter SENATE REPORT] (introduced by Senator DeConcini to reduce semiautomatic firearms abuse by drug traffickers and violent criminals); Roberti-Roos Assault Weapons Control Act of 1989, CAL. PENAL CODE §§ 12275-12290 (West 1990) [hereinafter Roberti-Roos]; MD. ANN. CODE art. 27 §§ 442,48 IE (1989) (placing greater restrictions on 17 varieties of "assault weapons," and providing punishments for failure to comply or attempts to evade); COLO. REV. STAT. §§ 16-11-103, -11-303, -13-309 (1989) (finding that act-Ion was necessary for the immediate preservation of the public peace, health, and safety, and providing mandatory sentencing for use of an "assault weapon" during the commission of violent crimes, such as drive by shootings); 1989 Fla. Sess. Law Serv. 89-306 (West 1989) (creating a Florida Commission on Assault Weapons to "combat the unlawful use of assault weapons in the state").
On February 7, 1989, only three weeks after the January 17, 1989, Stockton schoolyard incident, Los Angeles passed an "emergency ordinance" that outlawed the sale or possession of assault weapons within city limits. "Assault weapon" was defined as "a weapon with a magazine of twenty rounds or more that is able to fire single rounds rapidly with each pull of the trigger." Owners of these firearms were given 15 days from the effective date of February 8, 1989, to render their guns inoperable or turn them over to police for destruction. L.A. Times, Feb. 8, 1989, at 120, col. 1.
5. See Assault Weapon Control Act of 1989, S. 386, 101st Cong., 1st Sess., 135 CONG. REC. S1361-62 (daily ed. Feb. 8, 1989) (introduced by Senator Metzenbaum); "Assault Weapon Import Control Act of 1989," 1989: Hearings on H.R. 1154 Before the Subcomm. on Trade of the House Comm. on Ways and Means, 101st Cong., 1st Sess. 4-10 (1989) [hereinafter Hearings] (H.R. 1154 was introduced by Representative Gibbons). For a helpful chart summarizing the provisions of several currently proposed federal "Assault Weapon" statutes, see Bea, Semiautomatic Military-Style Firearms: Proposed Statutory Definitions, CRS REPORT FOR CONGRESS 89-415 GOV (July 11, 1989).
6. SENATE REPORT, supra note 4, at 6.
7. Id. at 7.
8. Id.
9. Id. at 6-7.
10. See Assault Weapon Control Act of 1989, S. 386, 101st. Cong., 1st Sess., 135 CONG. REC. S1362 (daily ed. Feb. 8, 1989) (listing approximately eight brands of firearms considered "assault weapons" and then including in the definition "any other semiautomatic firearm with a fixed magazine capacity exceeding ten rounds . . . and ... any other shotgun with a fixed magazine, cylinder, or drum capacity exceeding six rounds."); Roberti-Roos, supra note 4, at § 12276 (defining "assault weapons" by trade names in three categories of rifles, pistols, and shotguns, and including in the definition similar firearms that have military-style modifications such as folding stocks or bayonet mounts, or that have other alterations in such features as barrel or clip size), COLO. REV. STAT. § 16-11-103 (1989) (defining "assault weapon" as "any semiautomatic center fire firearm that is equipped with a detachable magazine with a capacity of twenty or more rounds of ammunition . . . "); SENATE REPORT, supra note 4, at 6 (S. 747 defines "assault weapon" with nine categories of weapons listed by brand names including, for example, the Norinco AK-47 copy, and the Colt AR- 15.).
11. See, e.g., Roberti-Roos, supra note 4, at § 12276. For an in depth look at the dynamics of the legislative process in passing California state restrictions, see L.A. Times, May 5, 1989, at 11, cols. 5-6. It is interesting to note that this new piece of legislation was in place only a few months after the January 17,1989 Stockton Schoolyard shootings. For a discussion of the Los Angeles emergency ban on "assault weapons" that was passed only three weeks after the Stockton shootings, see supra note 4.
12. Hearings, supra note 5, at 10, 114-15.
13. Edward Ezell, a curator at the Smithsonian, provides a detailed history of the development of the assault rifle. One of the motivations for designing the new rifle was that "most standard infantry rifles of the 1939-1945 era were capable of delivering a lethal projectile to ranges greater than twelve hundred meters . . . and . . . the recoil forces ("kick") from such weapon/ammunition combinations were generally heavy." E. EZELL, THE AK-47 STORY 98-99 (1986). Ezell notes that rapid fire with these cartridges was virtually unmanageable. See also 1. HOGG, THE ILLUSTRATED ENCYCLOPEDIA OF FIREARMS 314 (1987) (stating that "the standard military cartridge . . . was capable of delivering accurate fire to ranges of up to 2000 yards").
14. See generally, E. EZELL, supra note 13, at 94-124 (Ezell notes that "the submachinegun possessed a high rate of fire, . . . but it fired relatively low-powered pistol cartridges. Such ammunition had very limited striking power and was generally good only for very close-quarter combat"). Id. at 96-98.
15. Id. at 99,
16. Id. at 95.
17. Id.
18. Id.
19. Id. at 112.
20. See id. at 94-124.
21. 18 U.S.C. § 922(b)(4) (Supp. V 1987).
22. See, e.g., GUNS & AMMO 1990 ANN. ISSUE [hereinafter GUNS & AMMO]. This issue includes a complete firearms catalog and manufacturer's directory for 1990. The section entitled Semiautomatic Centerfire includes 33 military-style, semiautomatic rifles.
23. These weapons are very difficult to convert to fully automatic fire. For example, B.A.T.F. testimony has indicated that it requires additional parts and special tools to alter an AKS copy of the AK-47 to full-auto. See infra note 29. Not suprisingly, Los Angeles police officers testified that they have never confiscated an Uzi or AK-47 copy that had been converted to fully-automatic fire. Hearings, supra note 5, at 67-68.
24. SENATE REPORT, supra note 4, at 16.
25. S. 747 defines "assault weapon" in section 3 as AA) Norinco, Mitchell, Poly Technologies Avtomat Kalashnikovs (all models), (B) Action Arms Israeli Military Industries UZI and Galil, (C) Beretta AR-70,(SC-70), (D) Colt AR- 15 and Car- 15, (E) Fabrique Nationale FN/FAL, FN/LAR, and FNC, (F) MAC 10 and MAC 11, (G) Steyer AUG, (H) INTRATEC TEC-9, and (1) Street Sweeper and Striker 12. Id. at 6. Section 3 further provides that "the Secretary, in consultation with the Attorney General, may, when appropriate, recommend to the Congress the addition or deletion of firearms to be designated as assault weapons." Id.
26. S. 747 assault weapon categories (A),(B),(Q,(D),(E), and (G) include rifles, categories (F) and (H) include pistols, and category (1) includes shotguns). See supra note 25; for descriptions and current market information, see generally GUNS& AMMO, supra note 22. Since rifles like the AK-47 look-alikes have been the focus of much of the "assault weapon" debate, this note will primarily focus on the legitimacy of "assault rifle" restrictions. However, much of the discussion is equally applicable to the shotgun and pistol categories that are lumped together with rifles under the catch-all label "assault weapons."
27. See id. For an concrete example of the mislabeling, note the controversy surrounding the AK-47 assault rifle. The Soviet made AK-47, as discussed above, was designed as a true military assault rifle with selective fire capability. Since it can function as a fully-automatic weapon, the private purchase of an AK-47 has been banned since May of 1986. The weapons repeatedly called AK-47's by a confused press and legislators are not AK-47's at all, but are semiautomatic -only look-alikes of the true Soviet military rifles. Patrick Purdy did not use an AK-47. He used a Chinese, semiautomatic copy of the AK-47 known as the AKM-56S. See 135 CONG. REC. S 1870 (daily ed., Feb. 28, 1989) (Purdy used a semiautomatic copy of an AK-47 design that is not functionally distinguishable from other semiautomatic hunting rifles.). For a blatant example of the confusion about the AK-47, see infra text accompanying notes 99-102. Some have speculated that those attempting to pass legislation like S. 747 are not eager to correct the misperceptions. See infra text accompanying note 103.
28. Several senators noted, "The Bureau of Alcohol, Tobacco, and Firearms has no definition of 'assault weapon.' 'The military definition¾a selective fire weapon capable of firing in either an automatic or a semiautomatic mode¾is inapplicable to the commercial arena." See SENATE REPORT, supra note 4, at 16. The senators also stated that the definition was inapplicable because military-style semiautomatics are not distinguishable in function or in dangerousness from other more traditional semiautomatic designs. Id. at 17.
29. According to the testimony of B.A.T.F. before the Senate,
[t)he AK-47 is a select fire weapon capable of firing 600 rounds per minute on full automatic and 40 rounds per minute on semiautomatic. The AKS and AK-47 are similar in appearance. The AK-47 is an NFA type weapon, having been manufactured as a machine gun. The AKS is difficult to convert, requiring additional parts and some machinery . . . The AKS is a semiautomatic that, except for its deadly military appearance, is no different from other semiautomatic rifles. As a matter of fact, the identical firearm with a sport stock is available and, in appearance, no different than other so-called sporting weapons.
Hearings, supra note 5, at 70; see also Milek, Shooting Bench, GUNS & AMMO, November, 1989, at 16 (stating that, for example, the military-style HK-91 is just a like-chambered variant of the HK-770 Sporter, and that there are no real differences between weapons labeled as "assault weapons" and sporting rifles such as the semiautomatic Remington Model 7400 Sporter).
30. See Milek, supra note 29, at 16.
31. See supra note 10.
32. Hearings, supra note 5, at 68.
33. 135 CONG. REC. S 1870 (daily ed. Feb. 28, 1989).
34. One witness testified that magazine limits are inherently futile because criminals would either disregard them and employ larger magazines or tape smaller ones end to end to achieve the same effect. The witness concluded that "it would make almost as much sense to prohibit tape as to limit the quantities of these magazines." Hearings, supra note 5, at 62.
35. 135 CONG. REC. S1873 (daily ed. Feb. 28,1989).
36. Id.
37. Id. See also Steele, Guns for Today's Detectives, PETERSON'S HANDGUNS, October 1989, at 56, 60 (stating that Federal Witness protection teams have chosen Remington Model 870 pump shotguns because "the shotgun at close range comes closer in achieving total stopping efficiency than anything else").
38. 135 CONG. REC. S 1873 (daily ed. Feb. 28, 1989).
39. Handgun Control Inc. co-chairman Nelson Shields uses this shotgun for hunting. Id..
40. Id.
41. See supra note 29. See also E. EZELL, supra note 13, at 164 (giving a complete table of rates of fire for the AK-47 and AKM designs in full and semiautomatic modes).
It is also interesting to note that the bullets fired by the AK-47 look-alikes are designed to avoid lethal wounds and are consequently less deadly than many fired by sporting-style weapons. Col. Martin L. Fackler, M.D., Director of the United States Marine Corps Wound Ballistics Lab, stated that
[m]ilitary bullets are designed to limit tissue disruption¾to wound rather than kill. The full-metal-jacketed bullet is actually more effective for most warfare; it removes the one hit and those needed to care for him . . . newspaper descriptions comparing their effects with a grenade exploding in the abdomen . . . must cause the thinking individual to ask: . . . how is it possible that 29 children and one teacher out of 35 hit in the Stockton schoolyard survived . . . ? If producers of assault rifles had advertised their effects as depicted by the media, they would be liable to prosecution under truth-in-advertising laws.
Wall St. J., April 10, 1989, at A 13, col. I (letter to the editor); see also Maddox, Facts Don't Seem to Matter in AK-47 Debate, Charlotte Observer, Oct. 29, 1989, at B1, cols. 2-4 (noting that the purpose of military-style AK-47 fire is: "to wound rather than kill").
42. 135 CONG. REC. S1873-74 (daily ed. Feb. 28,1989).
43. L.A. Times, Feb. 24, 1989, at V6, col. 3. Block also stated that Patrick Purdy could have '.wreaked equal havoc" in Stockton with a number of other more common semiautomatics, and that "a semiautomatic rifle is a semiautomatic rifle, whether it was designed for military or other purposes, and the reality is that semiautomatic military weapons have been available for many years, certainly since World War U." Id.
44. 135 CONG. REC. S3634 (daily ed. April 11, 1989). Other witnesses have testified to Congress last year, when the Brady Bill was under consideration, that the "Saturday night special" was the weapon of choice of drug dealers. Hearings, supra note 6, at 62.
45. SENATE REPORT, supra note 4, at 1-2. The title of S. 747 is "The Antidrug, Assault Weapons Limitation Act of 1989."
46. Roberti-Roos, supra note 4, at § 12275.5.,
47. SENATE REPORT, supra note 4, at 18 (testimony of Detective Jimmy L. Trahin of the Los Angeles Police Department Firearms/Ballistics Unit). Trahin's calculations were based on S. 386's broader definition of "assault weapon."
48. Hearings, supra note 5, at 68.
49. Id. at 77 (quoting a March 5, 1989 article in the San Diego Union).
50. Id. (quoting a March 13, 1989 article in the Akron Beacon-Journal that included an interview with Akron patrolman Robert Offret. Offret works in the patrol's property room).
51. N.Y. Times, February 5, 1989, at E26, col. 3 (interview with Lieutenant James Moran, commander of the New York Police Department Ballistics Unit).
52. Wall St. J., April 7,1989, at A12, col. 3 (statement of George R. Wilson, chief of the firearms section of the Metropolitan Police Department). See also Wash. Post, March 6, 1989, at B I, col. 6 (Bureau of Alcohol, Tobacco, and Firearms statistics show that less than 10% of weapons seized in the District in 1988 were rifles of any type, and that out of 72 murder weapon traces, only one weapon was a rifle of any type).
53. Hearings, supra note 5, at 73. Only one percent of all homicides in the United States are committed with weapons of military caliber, and only one half of one percent of these homicides is attributable to military-style semiautomatic rifles. Id. at 67, 73.
54. 135 CONG. REC. E1930 (daily ed. May 31, 1989) (statement of William Dannemeyer of California including a chart from F.B.I. Uniform Crime statistics).
55. Wall St. J., April 7, 1989, at A 12, col. 3.
56. Wash. Post, March 6, 1989, at B 1, col. 6.
57. SENATE REPORT, supra note 4, at 18.
58. L.A. Times, Feb. 8, 1989, at 120, col. 4.
59. N.Y. Times, Feb. 5, 1989, at E26, col. 5.
60. SENATE REPORT, supra note 4, at 17.
61. See J. Wright & P. Rossi, ARMED AND CONSIDERED DANGEROUS (1986) (Professor Wright's research included a survey of over 2,000 convicted felons in prison facilities around the country).
62. Id. at 17.
63. Lock and Load for the Gunfight of '89, U.S. NEWS & WORLD REP., March 27, 1989, at 9 [hereinafter Gunfight]. Wright also said, "If criminals can get all the drugs they want, they can get guns, too." Id.
64. See 135 CONG. REC. S 1872 (daily ed. Feb. 28, 1989) (noting that banning the private possession of fully-automatic weapons in 1986 has not prevented criminal misuse of machine guns, but has only burdened those complying with the statute). Chief Gerald Arenberg, executive director of the National Association of Chiefs of Police, testified, "Automatic weapons, including the hundreds of thousands of weapons missing from U.S. Military arsenals, are readily obtainable, even by teenage gang members. A system that cannot control full-autos will not work any better on semi-autos. " 135 CONG. REC. E1677 (daily ed. May 15, 1989).
65. L.A. Times, Feb. 8, 1989, at 120, col. 4.
66. Id. at cols. 1, 5.
67. See Gunfight, supra note 63, at 9.
68. See Lamar, Gunning for Assault Rifles, TIME, March 27, 1989, at 39. Wild Sports Enterprises, one of Northern California's largest gun shops, began selling 30 AK-47 copies a day, even when the price was increased from $300.00 to $1,000.00 per rifle. Before the press furor began, this same shop only sold one of the AK-47 look alikes per week. Id.
69. One recent purchaser of a military-style semi automatic rifle cites media hype surrounding these weapons as one of his reasons for purchasing. L.A. Times, Feb. 24, 1989, at V1, col. 4.
70. See Hearings, supra note 5, at 68.
71. See id. (pointing out that under section 925(d)(3) of the 1968 Gun Control Act, semiautomatic firearms had to be given this "sporting purpose" certification before importation was allowed).
72. See id.
73. See L.A. Times, Feb. 24,1989, at VI, col. I (several owners and frequent users of the AK-47 look-alikes discuss the attributes of the design and its ready adaptability to field and range use).
74. See id.
75. Id.; see also Jamison, .223,308, .30-06,.45-70: The U.S. Military's Fearsome Foursome, SHOOTING TIMES, March 1990, at 36. This article notes that four modem military cartridges, and the military-style semiautomatics that chamber them, have become very popular with hunters. The author particularly highlights the use of the .223 cartridge by ranchers attempting to control the populations of varmints such as gophers and coyotes. The most common .223 rifles that the author mentions are the military look-alike Colt AR- 15, and Ruger Mini- 14.
76. L.A. Times, Feb. 24,1989, at V1,cols. 2, 4.
77. The single-shot, level-action [sic], and bolt-action rifles which copied the 19th century military firearm in design were the universal choice of sportsmen until World War 1.
By World War II, the United States was the only nation using semiautomatic firearms as standard equipment, and in the 1950's, civilians, too, sought semiautomatic designs for hunting rifles. There is nothing new about the popularity of military-style firearms, and there is nothing new about the semiautomatic mechanical action itself. What is new is the cosmetic appearance of some semiautomatic firearms, as once again some civilian shooters favor firearms resembling those used by the military.Hearings, supra note 5, at 68. 78. Military-style semiatuornatic [sic] rifles "are used lawfully for hunting in some 48 states, and can be seen in the hands of target shooters at nearly every rifle range in the country." 135 CONG. REC. S 1872 (daily ed. Feb. 23, 1989). See supra note 73 and accompanying text.
79. 135 CONG. REC. S 1872 (daily ed. Feb 23, 1989). See also Milek, supra note 29, at 16 (noting the usefulness of the Ruger Mini 14 and Colt AR-15's as sport or ranch rifles); Seyfried, Springfield Armory's Ideal Boar Rifle, GUNS & AMMO, November, 1989, at 60,60-61 (stating that the military-style Springfield MIA rifle provides the perfect combination of accuracy, high capacity, and reliability for rugged sports like boar hunting in North Carolina).
80. Milek, supra note 29, at 16.
81. See supra notes 4-5 for current definitional schemes.
82. See supra note 78. The Colt AR-15 has an excellent reputation for accuracy and reliability and has been a preferred rifle in target competitions, which include courses of fire of under 600 yards. NATIONAL RIFLE ASSOCIATION, M- 16 AR- 15 1 (1987) (NRA Book Service). In 1977, at Camp Perry, Ohio, these M16 rifles were used by several shooters of the National Trophy Individual Match event, and they have also been used in NBPRP and other NRA matches. Id. at 12. The pamphlet goes on to provide tips for fine-tuning the AR-15 for competition.
83. Hearings, supra note 5, at 70.
84. 135 CONG. REC. 1872 (daily ed. Feb. 23,1989).
85. 135 CONG. REC. E1677 (daily ed. May 15,1989) (opinion of Chief Gerald Arenberg and other law enforcement officials that military-style semiautomatics are exactly the type of firearms that should be protected as militia sidearms); see also supra note 78 and accompanying text.
86. 135 CONG. REC. S 1869-70 (daily ed. Feb. 28, 1989).
87. Hearings, supra note 5. at 77.
88. 135 CONG. REC. E1677 (daily ed. May 15,1989).
89. Id.
90. The testimony noted, for example, that "[a]nyone who reasonably fears attack by a gang-such as a store owner in the middle of a Miami riot--could reasonably conclude that the reliability and rapid fire capability of an Uzi or an AR- 15 is the only effective way to protect his or her family from murder." Id.
91. Id.
92. Id.
93. Snapping the bolt of an AK-47 look-alike chambers the first cartridge and produces a loud, distinct cocking sound.
94. See supra note 25.
95. See SENATE REPORT, supra note 4, at 24-28 (including a full five pages of public opinion polls that seem to suggest the public would support S. 747).
96. Id.
97. Id.
98. Id.
99. Church, supra note 1, at 25.
100. Id.
101. 18 U.S.C. §922(b)(4), (o)(1) (Supp. V 1987).
102. For a general discussion of the adoption of selective fire assault weapons by modem military forces, see E. Ezell, supra note 13.
103. Hearings, supra note 5, at 76.
104. SENATE REPORT, supra note 4. at 16. Senators Thurmond, Hatch, Simpson, Grassley, and Humphrey commented that "[i]n the attempt to generate support for banning these guns, they have been referred to as 'assault weapons,' a term which conjures up some idea of terrible weapons that have no purpose other than killing innocent people." Id.
105. 135 CONG. REC. S1868 (daily ed. Feb. 28, 1989).
106. Even Barbara Bush seems to have undergone a change in opinion. The First Lady told the press that she favored banning the AK-47. In a later press conference, her press secretary retracted those statements, saying, "She doesn't know anything about guns. She's afraid of guns. I think she was thinking of fully automatic weapons." L.A. TIMES, Feb. 24, 1989, at V 1, cols. 3-4.
107. SENATE REPORT, supra note 4, at 12.
108. Id. at 20-21.
109. Id.
110. Id.
111. U.S. CONST. amend. 11.
112. Note, The Constitutional Implications of Gun Control and Several Realistic Gun Control Proposals, 17 Am. J. CRIM. L. 19, 30-32 (1989) (authored by Mark Udulutch).
113. Id.
114. See Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 ALA. L. REV. 103, 106 (1987); Hardy, infra note 117. at 560.
115. Note, supra note 112, at 32.
116. Id.
117. See Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL'Y 559, 560 (1986). This article provides a summary of contemporary interpretations of the second amendment and a thorough discussion of the intention of its framers.
118. Id.
119. See, e.g., Stevens v. United States, 440 F.2d 144 (6th Cir. 1971).
120. SENATE SUBCOMM. ON THE CONSTITUTION OF THE COMM. ON THE JUDICIARY, 97TH CONG., 2D SESS., THE RIGHT To KEEP AND BEAR ARMS 6 (Comm. Print 1982) [hereinafter SUBCOMM. ON THE CONSTITUTION].
121. Id.
122. Hardy, supra note 117, at 562. Hardy provides a useful history of the second amendment that traces its development back through early English history.
123. Id.
124. SUBCOMM. ON THE CONSTITUTION, supra note 120, at 3.
125. Hardy, supra note 117, at 5 88.
126. Id.
127. Id. at 589-90.
128. Id.
129. "The experience of the Revolution thus strengthened the colonial perception of a link between individual armament and individual freedom. The colonists, who perceived themselves as staunch Whigs, continued to see free individual armament as Whig dogma." Id. at 593.
130. Id. at 600-15.
131. Id. at 600.
132. Id. at 600-15.
133. R. LEE, LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 124 (1977).
134. Hardy, supra note 117, at 599.
135. Id.
136. THE FEDERALIST No. 46, at 299 (J. Madison) (C. Rossiter ed. 1961).
137. Id.
138. Hardy, supra note 117, at 604.
139. H.R. Doc. No. 398, 69th Cong., 1st Sess. 1026 (1927).
140. Id.
141. SUBCOW ON THE CONSTITUTION, supra note 120, at 5.
142. H.R. Doc.. No. 398, 69th Cong., 1st Sess. 1030 (1927).
143. "State conventions had made no fewer than five appeals for such a right; such accepted rights as freedom of speech, of confrontation, and against self-incrimination could boast but three endorsements." Hardy, supra note 1] 7, at 604.
144. SUBCOMM. ON THE CONSTITUTION, supra note 120, at 6.
145. There can be little doubt . . . that when the Congress and the people spoke of a "militia," they had reference to the . . . entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard . . . . Id. at 7. When the framers referred to the equivalent of our National Guard, they uniformly used the term "select militia" and distinguished this from "militia." Indeed, the debates over the Constitution constantly referred to organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constitute, and indeed were philosophically opposed to, the concept of a militia. Id. at 11. 146. Hardy, supra note 117, at 609.
147. See SUBCOMM. ON THE CONSTITUTION, supra note 120, at 11.
148. Id.
149. Id. at 7.
150. T. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 271 (reprint 1981).
151. SUBCOMM. ON THE CONSTITUTION, supra note 120, at 11.
152. See supra note 145.
153. 92 U.S. 542 (1876).
154. "The second amendment declares that [the right to bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress." Id. at 553.
155. 116 U.S. 252 (1886).
156. Id. at 265.
157. 60 U.S. (19 How.) 393 (1857).
158. Id. at 417.
159. 307 U.S. 174 (1938).
160. Id. at 175.
161. Id. at 177.
162. Gardiner, To Preserve Liberty-A Look at the Right to Keep and Bear Arms, 10 N. KY. L. REV. 63, 88 (1982).
163. Miller, 307 U.S. at 179.
164. Id.
165. Id.
166. Id. at 178.
167. Id. (quoting Aymette v. State, 21 Tenn. (2 Hum.) 154,158 (1840)).
168. Nunn v. State, I Ga. (1 Kel.) 243, 251 (1846).169. 126 Mt. 157, 247 P.2d 188 (1952).
170. Id. at 166, 247 P.2d at 192.
171. 406 111. 419, 94 N.E.2d 320 (1950).
172. Id. at 424, 94 N.E.2d at 323.
173. Caplan, The Right of the Individual to Bear Arms: A Recent Judicial Trend, 4 DET. C.L. REV. 789,790(1982).
174. See City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737 (N.M. Ct. App. 197 1); People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (Colo. 1936); Shubert v. DeBard, 398 N.E.2d 1339 (Ind. Ct. App. 1980); Fife v. State, 31 Ark. 455, 461 (1876).
175. Andrews v. State, 50 Tenn. 165, 178 (187 1).
176. Id. at 179.
177. 272 N.C. 535, 159 S.E.2d 1 (1968).
178. Id. at 545, 159 S.E.2d at 9 (Article I section 24 of the North Carolina Constitution provides, in part, that "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. . . .
179. State v. Kessler, 289 Or. 359,361,614 P.2d 94,95 (1980) (quoting article L § 27 of the Oregon Constitution).
180. Id. at 367-68, 614 P.2d at 100 (holding that Article 1, section 27 of the Oregon Constitution includes a right to possess certain arms for defense of person and property); State v. Blocker, 291 Or. 255, 260, 630 P.2d 824, 825 (1981) (mete possession of weapons like a "billy club" is protected by the Oregon Constitution).
181. Hearings, supra note 5, at 104. Hon. Charles B. Rangel, National Council For a Responsible Firearms Policy, Inc., stated,
I understand the second amendment and the right to bear arms. I understand the fight to protection and all of those issues. I am well aware of the fact that just because a gun is powerful and has lots of fancy features, it does not mean that each and every person who purchases it does so with the intent of taking human lives.
But I also understand the fact that we cannot continue to allow human beings, and not animals, to be hunted down with these weapons, People are being stalked through the streets and the neighborhoods and pumped full of bullets like prey on "Wild Kingdom."
Id.
182. Hardy, supra note 117, at 633-34.
183. United States v. Miller, 307 U.S. 174, 178 (1938).
184. Id.
185. Kessler, 289 Or. at 368, 614 P.2d at 98.
186. Id. at 368-69, 614 P.2d at 98-99.
187. Simpson v. State, 13 Tenn. 356, at 359-60 (1833). See also Nunn v. State, 1 Ga. (I Kel.) 243, 251 (1846) (affirming the individual right to "keep and bear arms of every description").
188. 50 Tenn. (3 Heisk.) 165 (1871).
189. Id. at 179.
190. Fife v. State, 31 Ark. 455,461 (1876).
191. Id. at 460-61.
192. Kessler, 289 Or. at 369, 614 P.2d at 99.
193. Id.
194. Id. at 98-99.
195. See supra note 191 and accompanying text.
196. See supra notes 166-67 and accompanying text.
197. See supra notes 77-93 and accompanying text.
198. See supra notes 29-34 and accompanying text.
199. 135 CONG. REC. S3015 (daily ed. March 17, 1989). Civilians own military-style semiautomatic rifles as part of rifle collections or as nostalgic reminders of service in the military. See, e.g., Commemorative M-16 Offer, GUNS & AMMO, June 1989, at 7 (offering Vietnam veterans an engraved, semiautomatic version of their service rifle with a frame for wall-mounting). Even such benign commemoratives would fall within the sweep of legislation like S. 747 because they could conceivably be taken out of the frame and fired.
200. See supra notes 35-43 and accompanying text.
201. See supra notes 47-59 and accompanying text.
202. 135 CONG. REC. S3015 (daily ed. March 17, 1989).
203. SENATE Report supra note 4, at 20.
204. See, e.g., Bierman, Rashid, GUNS & AMMO's Complete GUIDE TO SURPLUS Firearms 44 (1988) (commenting on the reliability, accuracy, and historical interest of the Egyptian "Rashid" variant of a Soviet military semiautomatic rifle). The author notes that while the selective fire AK-47 rendered the Rashid obsolete for military purposes, this Egyptian semiautomatic rifle is an excellent selection for the civilian hunter, target shooter, or gun collector with an interest in military history.
205. See supra note 6 and accompanying text.
206. See supra notes 109- 10 and accompanying text.
207. See supra notes 35-43 and accompanying text.
208. See supra notes 60-67 and accompanying text.
209. See supra notes 44-46 and accompanying text.
210. Hearings, supra note 5, at 75. These proposals were suggested to Congress during testimony on proposed "assault weapon" statutes.
211. Id.
212. Austin Amer. Statesman, Sept. 17, 1989, at A 19, col. 2.
213. Id. at AI9, col.3. In fact, the study showed that after one episode of Miami Vice featured the Bren 10, gun stores were flooded with demands for the unusual weapon and the price has now reached $1200 per gun. Id.
214. Id.