Seton Hall Legislative Journal
Symposium: Triggering Liability: Should Manufacturers, Distributors, and Dealers be Held Accountable for the Harm Caused by Guns?
vol. 19, no. 3, 1995.
Note, 857.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
FIRING BACK: LEGISLATIVE ATTEMPTS TO COMBAT ASSAULT WEAPONS
Thomas E. Romano*
I. Introduction
In January 1989, a drifter by the name of Patrick Purdy aimed the barrel of his AK-47 semi-automatic[1] assault rifle into a Stockton, California schoolyard and pulled the trigger, firing more than 100 bullets, killing five children, and wounding thirty others before turning the gun on himself.[2] This act, among countless others, shocked a nation into focusing on the epidemic of crime in the United States.[3] Although the perpetrators of these crimes were, themselves, responsible for the carnage, random acts of violence such as these brought issues previously unique to urban communities into mainstream American consciousness.[4] The American public, fueled by the fear and outrage that such atrocities inspire, turned their attention from those committing these acts to what most perceived as a greater threat: guns, and more specifically, [Page 858] semi-automatic assault weapons.[5] Noting this trend, politicians, in an effort to be perceived as "tough on crime," worked to make semi-automatic assault weapon bans a reality.[6]
This Note will focus on three semi-automatic assault weapons bans in three jurisdictions: California, the first state to enact a state-wide assault weapons ban; New Jersey, considered the most extensive; and the most recent Federal ban. Discussion on each of the bans will include what constitutes an assault weapon; criteria for possession, manufacture, or transfer; and the legislative history and intent of the ban.
While this piece is not devoted exclusively to the Second Amendment, one can hardly discuss the validity of such bans in the abstract. Therefore, this Note will discuss the impact of the Second Amendment on the attempts to ban assault weapons. The Second Amendment discussion will include the controversial preamble argument, noting the disparity between its interpretation by gun-control advocates and individual rights groups. The minimal case law that exists will be discussed to attempt to properly interpret the poorly-drafted and arguably more poorly-interpreted amendment.
The Note will also explore the impact such bans have in reality. Perspectives of the National Rifle Association (hereinafter "NRA") and Handgun Control, Inc. (hereinafter "HCI") will be analyzed in this section. Statistical analyses will be discussed detailing [Page 859] what these groups claim is the public perception of these bans, as well as the impact, if any, an assault weapons ban has on crime.
The purpose to be served by this Note is not to query whether the bans could be imposed, although some discussion will consider this question. The focus, rather, will be the impact these bans have and why. Are these bans a preemptive strike on crime, are they an important first step in the battle, or are the bans simply a political tool used to garnish votes by quelling the fears of a frightened nation?
II. Historical Background
The proliferation of assault weapons has been a growing problem documented by a series of congressional hearings.[7] Congress reported that the use of these weapons in criminal instances was on the rise.[8] Testifying before Congress, law enforcement officers echoed these reports of assault weapons proliferation.[9]
More shocking than any statistical analysis, however, are the accounts of random acts of violence perpetrated through the use of assault weapons. A thirty-five year old "handyman," Colin Ferguson, murdered five and wounded eighteen passengers on a Long [Page 860] Island commuter train on December 7, 1993 in a racially motivated shooting spree with a semi-automatic pistol.[10] On February 22, 1994, an officer of the Los Angeles Police Department was murdered by a drug-using teenager brandishing a Colt AR-15 before the teenager killed his father, who had given the youth the gun, and then killed himself.[11] Gunman Gian Luigi Ferri killed eight people and wounded six on July 1, 1993. Shooting from a San Francisco high rise building, Ferri eventually took his own life.[12]
III. California and the Roberti-Roos Assault Weapons Control Act of 1989
A. Legislative History
On May 24, 1989, California became the first state to enact a statewide semi-automatic assault weapons ban.[13] The California [Page 861] legislation, enacted four months after the Stockton schoolyard shooting,[14] was promulgated with the Legislature's declaration that "the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of [the] state."[15] The Legislature intended the Act to address the declared threat by placing restrictions on the use of assault weapons and establishing registration and permit procedures for lawful sale and possession.[16] It was not intended, however, to ban weapons whose primary design was for legitimate sporting or recreational purposes.[17]
The Speaker Pro Tempore of the California Assembly, Democrat Mike Roos, introduced legislation in the Assembly that sought to ban assault weapons.[18] This legislation, joined by a similar bill [Page 862] introduced in the California Senate by Senator David Roberti,[19] became law on May 24, 1989 as the Roberti-Roos Assault weapons Control Act of 1989.[20]
B. Scope of the California Ban1. Definition of Assault Weapons and Possession
California's ban defines assault weapons as semi-automatic firearms specifically included on a list designated as assault weapons,[21] and firearms to be determined assault weapons by the Attorney General or by the court.[22] Once listed, either statutorily or by [Page 863] promulgation by the Attorney General, possession of an assault weapon in California is prohibited, notwithstanding certain exceptions, without proper registration or a permit from the Department of Justice.[23]
The California law, however, does provide for legal possession of firearms designated assault weapons through the use of a grand- [Page 864] father clause.[24] Persons possessing assault weapons prior to June 1, 1989 may retain the weapons if registered by January 1, 1991, and anyone in possession of a weapon subsequently designated an assault weapon may register and keep the weapon by registering it with the Department of Justice within ninety days of the classification.[25] Alternatively, a permit may be obtained from the Department of Justice for ownership by those who either do not qualify under the grandfather clause or who wish to use the weapon in a manner inconsistent with the statutorily prescribed uses.[26] No person under the age of eighteen, however, or anyone prohibited from possessing a firearm under this Code may register or possess an assault weapon.[27]
2. Other Regulated Activity
The California ban also strictly regulates the manufacture, distribution, importation, sale, and transfer of assault weapons. Con- [Page 865] duct in any of these areas, except as provided by statute, is a violation treated more severely than mere possession.[28] Where illegal possession is an offense qualifying for up to one year in prison, the previously mentioned conduct requires imprisonment for four to eight years, notwithstanding any additional enhancements for other criminal conduct.[29]
The California regulation, however, allows for certain statutorily recognized entities to obtain a permit for the purpose of manufacturing.[30] Lending an assault weapon to another is also allowed provided the lawful possessor complies with the statutory conditions for lending, such as who may receive the weapon and where the lending can take place.[31] Sale, however, after January 1, 1990, is strictly prohibited to anyone within the state other than a licensed gun dealer.[32] [Page 866]
IV. New Jersey's Assault Weapons Ban
A. Legislative History
New Jersey's assault weapons ban was introduced by State Senator Frank X. Graves, Jr., who pre-filed it for the 1990 Legislative Session.[33] After Senator Graves' death on March 1, 1990, sponsorship of the bill was assumed by Senator John F. Russo (I-Ocean) and Assemblyman Joseph A. Mecca (D-Passaic).[34] The purpose of the bill, introduced in the Senate Judiciary Committee, was to prohibit the possession, sale, or manufacture of assault weapons or large capacity ammunition magazines.[35] [Page 867]
On March 12, 1990, the Senate Judiciary Committee reported favorably upon the bill with minor amendments.[36] Among the amendments was a modification of the definition of a semi-automatic rifle.[37] There were major revisions, however, contained in the second reprint of the bill. The prior definitions of what constituted an assault weapon were substantially replaced with specifically listed firearms.[38] [Page 868]
The bill passed both houses of the New Jersey Legislature on May 17, 1990.[39] There were no printed hearings. Governor James J. Florio signed the bill into law on May 30, 1990.[40]
B. Scope of the Ban
1. Prohibitions on Possession
The New Jersey statute, similar to that of California, defines assault firearms primarily through a specific list of weapons.[41] The [Page 869] list of assault weapons in New Jersey, however, contains a greater number of firearms designated assault weapons than does its California counterpart.[42] Amending New Jersey's statute on unlawful possession of weapons,[43] possession of a firearm designated an assault weapon became prohibited outside certain narrow exceptions.[44]
Anyone wishing to possess an assault weapon in New Jersey under the ban may apply for a license to do so.[45] Still, these licenses are very restrictive and difficult to obtain.[46] Assault weapons determined by the Attorney General to be legitimate for target shooting may also be retained under the statute if properly registered.[47] In order to retain possession without obtaining a license [Page 870] or a registration to keep an assault weapon in New Jersey, any owner of such a weapon was granted a one year period following the enactment of the statute to legally transfer the weapon, surrender it to the police, or render it permanently inoperable.[48]
The California and the Federal bans both provide a grandfather clause for such weapons, allowing their retention if legally owned prior to the enactment of the bans.[49] New Jersey, which strictly prohibits possession of an assault weapon aside from the aforementioned means of retention, does not provide for a grandfather provision.[50] [Page 871]
The scope of New Jersey's ban is also broader than that of California in that it prohibits large capacity ammunition magazines.[51] A large capacity ammunition magazine is statutorily defined as a container capable of holding greater than fifteen rounds of ammunition to be continuously fed into a semi-automatic firearm.[52] With few exceptions, possession of a magazine of this type is a crime of the fourth degree,[53] which potentially carries a sentence of imprisonment of up to eighteen months.[54] New Jersey also specifically bans semi-automatic shotguns designed with a pistol grip[55] unlike the California ban.[56]
2. Other Regulated Activity
New Jersey law strictly regulates the manufacture, transportation, disposition, and defacement of weapons.[57] Additionally, [Page 872] other activity involving assault weapons is highly regulated,[58] including the application process for licensing and registering an assault weapon.[59] Under the New Jersey statute, one must be registered in order to manufacture, ship, sell, or dispose of an assault weapon.[60] Without proper registration or licensure to conduct such activity, this conduct becomes a crime of the third degree,[61] which may carry a sentence of imprisonment for three to five years.[62]
Manufacturing, causing such manufacture, transporting, shipping, selling, or disposing of large capacity ammunition magazines without a license is also prohibited.[63] If not intended for authorized military or law enforcement purposes,[64] this conduct with regard to large capacity ammunition magazines is a crime of the fourth degree.[65]
The knowing defacement of an assault weapon, as with any firearm in New Jersey, is a crime of the third degree.[66] A knowing purchase, receipt, disposal, or concealment of a defaced firearm, other than an antique firearm, is a crime of the fourth degree under New Jersey law.[67] [Page 873]
Similar to the prohibitions on manufacturing, shipping, selling, and disposing of assault weapons, violating the provisions regulating conduct concerning assault weapons also constitutes a crime.[68] Violations of regulatory provisions associated with firearms are crimes of up to the third degree in New Jersey.[69] Specifically, with regard to assault weapons, giving false information in registering or applying for a permit to possess an assault weapon are crimes under New Jersey law.[70] Additionally, New Jersey prohibits attempts to sell assault firearms through newspaper advertisements within the State of New Jersey without specifying that the purchaser is required to hold a valid license or firearms identification card for the purchase of an assault weapon.[71]
3. Sentencing Guidelines for Assault Weapons Violations
In addition to the prohibited conduct and penalties previously discussed, if conduct otherwise prohibited by law occurs while illegally possessing an assault weapon, that conduct is treated more severely by the courts.[72] Under New Jersey law, a person found guilty of possession of a firearm with the purpose of committing an unlawful act is guilty of a crime of the second degree,[73] which is punishable by imprisonment for a term of five to ten years with no parole eligibility.[74] If the firearm illegally possessed is an assault [Page 874] weapon, a term of imprisonment is mandatory if, at a pre-trial hearing, grounds for the sentence are established.[75]
A person convicted of a violent or attempted violent crime, including flight from the crime, while illegally possessing an assault weapon shall also be sentenced to a term of imprisonment by the court.[76] If an offender under this section[77] commits a crime while in possession of an assault weapon, and has previously been convicted of a firearms offense, the court shall extend the terms of the sentence.[78]
The extent of the gravity of assault weapons violations in New Jersey is best exemplified by the statutory provision which dictates that when a licensed or registered assault weapon is used in the commission of a crime, the license or registration holder is liable [Page 875] for civil damages.[79] This liability is imposed regardless of the holder's responsibility in the commission of the crime.[80] In the event that the weapon was stolen, if the license or registration holder failed to properly report the theft, he or she is responsible for the civil damages.[81] Finally, the Attorney General is required to study the effects of the ban and report to the Legislature these findings accompanied by recommendations for change.[82]
V. The United States and The Public Safety and Recreational Firearms Use Protection Act
A. Legislative History
The Violent Crime Control and Law Enforcement Act of 1994[83] was signed into law on September 13, 1994.[84] Contained in the Act was a ban on nineteen types of assault weapons.[85] The purpose of the ban was to create criminal penalties for the possession, manufacture, and transfer of semi-automatic assault weapons, certain ammunition magazines, and parts capable of assemblage into [Page 876] assault weapons.[86] A series of hearings on assault weapons conducted over the past five years prompted the passage of the bill.[87]
Amid evidence that the use of assault weapons in connection with criminal activity was on the rise,[88] attempts to ban assault weapons began with the 1989 ban on the importation of forty-three types of semi-automatic assault weapons.[89] Attempts at domestic bans, however, were not so successful.[90] On October 17, 1991 the house of Representatives voted down a ban on thirteen types of assault weapons and large capacity ammunition magazines.[91] Although some members of Congress expected this defeat,[92] [Page 877] others, specifically Representative Charles E. Schumer (D-NY), vowed that he would continue to fight for a ban.[93]
Gun control advocates were back in the fall of 1993, once again, with a push for the ban of assault weapons.[94] Senator Feinstein authored the Senate's version of the assault weapons ban,[95] which was passed by the Senate on November 17, 1993.[96] Representative Schumer proposed the same ban in the House of Representatives.[97]
Opposition to the proposed House ban was strong and was spearheaded by House Judiciary Chairman Jack Brooks (D-Tx).[98] On April 25, 1994, however, the House Subcommittee on Crime and Criminal Justice held hearings to amend the bill, eventually reporting the bill favorably to the House on April 28th.[99] The bill [Page 878] gained strength through the support of an unexpected convert, Representative Henry J. Hyde (R-Ill).[100] Representative Hyde became the only Republican on the Committee to endorse the bill, while the only Democrats to oppose it were Committee Chairman Brooks and Representative Rick Boucher (D-Va).[101]
Intense lobbying efforts took place on each side of the issue.[102] A major lobbying campaign from the Clinton Administration and gun control supporters was waged on May 5, 1994, the day scheduled for a House vote on the ban.[103] Assault weapon ban supporters won a come-from-behind victory as the House voted to pass the [Page 879] bill.[104] The victory, however, was not complete.[105] The House ban had yet to be reconciled with that of the Senate, and the ban still had enemies.[106] On August 11, 1994, the House of Representatives blocked a final vote on the ban.[107] In a press conference following the block, President Clinton called it a procedural trick orchestrated by the NRA and the Republican leadership in the House.[108] The President asked that the House keep meeting until the ban on assault weapons became law.[109]
Subsequently, the House of Representatives passed the crime bill on August 21, 1994, with the assault weapons ban intact.[110] Op- [Page 880] position remained, however, and there was determination to block the ban.[111] An attempted procedural block, orchestrated by Republican Senator Phil Gramm on August 25, however, was overcome when Senate Democrats persuaded enough Republicans to vote down the block.[112] On September 13, 1994, the crime bill, including the ban on assault weapons, was signed into law by President Bill Clinton.[113]
B. Scope of the Ban
The Public Safety and Recreational Firearms Use Protection Act prohibits the possession, manufacture, or transfer of a semi-automatic assault weapon.[114] Also prohibited are large capacity ammunition feeding devices.[115] The Act defines assault weapons through a list of nineteen specifically prohibited firearms and their [Page 881] duplicates in any caliber,[116] as well as through the ability of a semi-automatic weapon to accept specifically listed items characteristic of an assault weapon.[117]
The federal ban, like that enacted in California, provides a grandfather clause for weapons meeting certain criteria.[118] The clause exempts from the prohibition assault weapons and large capacity ammunition magazines lawfully owned under federal law prior to the ban.[119] Assault weapons and large capacity ammunition magazines manufactured after the enactment of the ban are required to bear markings indicating the date of manufacture in order to clearly distinguish them from grandfathered weapons.[120] [Page 882]
There are other categories of weapons exempted from prohibition. The ban does not apply to 650 specifically exempted semi-automatic sporting rifles.[121] Firearms that are bolt, lever, pump, or slide action are exempted, as are antique firearms and assault weapons rendered permanently inoperable.[122] Semi-automatic rifles unable to accept detachable magazines that hold more than five rounds of ammunition and semi-automatic shotguns unable to hold greater than five rounds in fixed or detachable magazines are also exempted from the ban.[123]
The prohibition on possession of assault weapons and large capacity ammunition magazines, or their manufacture or transfer, does not apply to certain specifically exempted classes.[124] Among these classes are the federal and state governments and law enforcement agencies.[125]
Similar to a provision in the New Jersey weapons ban,[126] the Attorney General is to conduct a study on the effects of the ban and report to Congress any findings and determinations.[127] The [Page 883] Act is to be repealed automatically on September 13, 2004, ten years from the date of its enactment.[128]
VI. Impact of Assault Weapons Bans
A. The Second Amendment
Critics of bans on assault weapons claim that this restriction on the right of firearm possession runs afoul of the Second Amendment of the United States Constitution.[129] The following section will discuss the impact of the Second Amendment on assault weapons legislation in light of judicial, legislative and scholarly interpretation.
1. The Preamble Controversy
The Second Amendment reads: "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."[130] The problem that arises from the language of the Amendment is the question of who has the right to keep and bear Arms: individuals or the collective militia?
The term "militia" historically signified all able-bodied men between the ages of eighteen and forty-five.[131] Enrollment in the militia required men to provide their own firearms.[132] The United [Page 884] States Constitution granted the power of organizing and arming the militia to Congress.[133] In 1792, the Militia Act was passed by Congress under the authority granted to it by the Constitution.[134]
In response to the general decline of attendance and training of the several state militias,[135] Congress passed the Militia Act of 1903, commonly known as the "Dick Act."[136] This Act provided for the federal training, funding, and arming of an organized militia known as the National Guard, of which the States had a concurrent power of mobilization.[137] Those not members of the National Guard formed a second group, the unorganized militia, which was not provided the right to arm in the Act.[138]
If the right to bear arms is based upon service in a "well regulated militia," with the existence of the organized militia, the National Guard, equipped by the Federal government and capable of being mobilized by the individual States, two questions remain. First, is there a need for individuals to arm themselves for militia service, and second, what does this mean for the Second Amendment?
Proponents of the right of individuals to keep and bear arms [Page 885] cite the language, "the right of the people to keep and bear arms shall not be infringed," to indicate an unequivocal individual right.[139] In fact, one author argues that because the right was included in the Bill of Rights, and not included in Congress' militia powers, the right was intended for individuals.[140] Case law indicates, however, that individual theorists are missing the mark.
2. Judicial interpretation
In United States v. Miller,[141] the Supreme Court stated that the only purpose of the Second Amendment was to ensure the effectiveness of the State militia.[142] In its ruling upon the facts before it, the Supreme Court held that the weapons at issue were not proven to be ordinary military equipment nor was their use proven necessary to contribute to the common defense, thus, the rights to possess these weapons were not protected by the Second Amendment.[143] This narrowed the confusion over the scope of the Amendment. The Court further clarified the debate by stating that the militia was a government force rather than a group of armed individuals.[144] Based on the Court's recognition of the militia as a [Page 886] government military force, courts have consistently interpreted the Second Amendment to grant a collective, rather than an individual, right to bear arms for the maintenance of a "well regulated militia,"[145] and that the arming of this force was dictated by the Dick Act.[146] The argument for the arming of private individual citizens for military service, even under the guise of an unorganized, certainly not "well regulated" militia,[147] therefore, loses force.
Some commentators suggest that when a weapon is potentially useful to the military, the right to possess the weapon is protected by the Second Amendment.[148] This same rationale, however, would entitle citizens to possess heavy artillery and machine guns.[149] Courts have not adopted this wholesale application that military usefulness automatically warrants Second Amendment protection.[150] In fact, courts have held that regardless of the potential military use of a weapon, the Second Amendment does not protect an individual's possession of otherwise illegal firearms.[151] [Page 887] These holdings have been premised on the findings of the courts that the Second Amendment insures a collective right to possess firearms as a militia, not the right of individual to bear arms simply because they are citizens of the United States.[152]
Given the fact that courts have consistently held that the Second Amendment guarantees a collective right rather than an individual right, the next issue to be addressed is the relationship between this right and assault weapons bans. Clearly, the Second Amendment guarantees the collective right to bear arms for the maintenance and efficiency of a well-regulated militia.[153] This right, however, appears to be further eroded by a series of Supreme Court cases holding that the right is safeguarded only from infringement by the federal, and not state, government.[154] These Court cases, however, were decided prior to the Constitutional incorporation of the Bill of Rights to the states through the Fourteenth Amendment.[155] [Page 888]
In light of the incorporation of the Bill of Rights to the states,[156] the view of many commentators is that the states are held to the same standards as the Federal Government in regulating weapons possession.[157] Even assuming, however, that the Second Amendment has been incorporated through the Fourteenth Amendment, states must provide the same safeguards as the federal government. The limits on the federal government, as discussed above, apply only to the groups covered by the Second Amendment, the state militia.[158] Therefore, states would be restricted from prohibiting their own militia from possessing weapons necessary for their maintenance and efficiency. Court cases and the Supremacy clause of the United States Constitution, however, have already assured against this proposition.[159]
Notwithstanding the restraints placed upon the States to regulate the possession of firearms,[160] certain truths still exist. The Second Amendment does not apply to individuals, as the only protected group is the collective militia.[161] Therefore, individuals have no recourse against restraints on possession under the incorporation of the Second Amendment to the States. Considering the fact that each of the assault weapons bans discussed in this Note contain specific exemptions applicable to the organized militia, each of the aforementioned bans appears to be within the parame- [Page 889] ters of the Second Amendment.[162]
B. The Effect of the BansWhile discussing what each ban prohibits or allows, and whether the bans can be imposed, the same question is inevitably raised: Should the bans be imposed? The next section will analyze the potential problems assault weapons pose, and explain whether the bans effectively solve them.
Many polls show that the public is in favor of bans on assault weapons.[163] There are, however, those who feel just as strongly that the weapons should not be banned.[164] Considering the divi- [Page 890] siveness of the issue, one must look at the empirical data to see what effect assault weapons bans have on crime.
Assault weapons comprise one-half of one percent of the firearms in private circulation in the United States.[165] Although this number appears small, the Bureau of Alcohol, Tobacco, and Firearms reports that their percentage of use in crimes is quite high.[166] Yet, there are statistics that suggest quite a different picture.[167] Congressional hearings produced evidence that the use of assault weapons in crime was minimal.[168] The Federal Bureau of Investigation reported, in fact, that Americans have a much greater chance of dying by a knife or blunt instrument than by a rifle of any type.[169]
Legislators often refer to assault weapons as the "weapons of choice" for criminals.[170] There are those in law enforcement who disagree, and claim that pistols are the true weapon of choice.[171] Police reports vary on the frequency that such weapons are encountered.[172] [Page 891]
The argument that this ban will affect only law-abiding citizens is not without merit. Statistics show that most assault weapons possessed by criminals are acquired illegally.[173] Newspapers report accounts of blatant criminal disregard for such bans.[174] Countervailing theories do exist, however, to refute the propositions that assault weapons bans will effect only the law-abiding.[175]
Finally, opponents of the assault weapons bans argue that the guns prohibited are functionally identical to weapons not exempt.[176] Because all semi-automatic weapons fire ammunition at a rate of one bullet for each pull of the trigger,[177] opponents believe that the bans simply prohibit frightening appearances.[178] Advocates of a ban on assault weapons disagree.[179] Ban supporters cite [Page 892] characteristics of assault weapons that differentiate these weapons from other semi-automatic weapons.[180] These characteristics, they believe, allow for a higher concealability and greater rate of indiscriminate fire, which are not characteristics designed or necessary for legitimate sporting purposes.
VII. Conclusion
The several bans on assault weapons in effect make illegal the possession, manufacture, transfer, and disposition of several types of assault weapons and high capacity ammunition magazines. Proponents of the individual rights of the citizenry to possess assault weapons argue that the bans are unconstitutional under the Second Amendment. The truth is that they are not. Assault weapons bans in effect are completely constitutional, as each leaves free the ability for the National Guard to possess such weapons. Judicial scrutiny reveals that it is the National Guard, or organized militia, that is protected under the Second Amendment.
The problem lies, however, in the impact the ban will have. Criminals who break the law simply have another law to break. As indicated previously, most firearms obtained by criminals are obtained illegally.[181] Therefore, how would banning assault weapons change this statistic? Additionally, assault weapons make up the smallest fraction of total weapons in circulation, and an even smaller fraction of weapons used in crime. By placing a ban on assault weapons, violent criminals will simply resort to more easily attainable, equally lethal weapons.
These bans may work to remove weapons from the hands of some criminals. Grandfather clauses, however, keep these guns available for potential use in crime. Through the ability of citizens to retain grandfathered weapons, criminals are given the opportunity to illegally obtain otherwise legal guns. The practical effect that these bans will have on crime will be negligible.
However, the ban does send a message, if nothing else. The message sent is that people do not want these weapons on the streets any longer. Opponents to the bans argue that assault weap- [Page 893] ons are functionally identical to other semi-automatics. This simply is not the case. The rate of fire, while still one shot per squeeze of the trigger, becomes more prolonged and indiscriminate in assault weapons. Legislative responses to the nation's mandate may, if nothing else, be an important first step to seriously combat crime in America. While the wholesale disarming of the country may not be the answer, it is clear that some weapons pose such a threat to society, that their functional utility can no longer be held above the lives of American citizens.
* J.D., Seton Hall University School of Law, anticipated 1995.
1. See, N.J.STAT.ANN. § 2C:39-1 (West 1990) (defining semi-automatic as a type of firearm which fires a single bullet at each pull of the trigger. The weapon is self-reloading or has the capability to automatically re-chamber a round).
2. George J. Church, The Other Arms Race, TIME, Feb. 6, 1989, at 20. The shooting occurred four months before California passed the first statewide ban on assault weapons. See CAL.PENAL CODE §§ 12275-12290 (West 1989). Entitled the Roberti-Roos Assault Weapons Control Act of 1989, the California law bans rifles, handguns, and shotguns designated as assault weapons by inclusion in the statutory list of prohibited weapons, models considered simply variations of those listed, or those possessing certain characteristics sufficient to warrant inclusion on a list of assault weapons promulgated by the Attorney General. Id.
3. Carolyn Skorneck, Senate Votes to Ban Assault Weapons, BOSTON GLOBE, Nov. 18, 1993, at 1. In light of polls showing that Americans consider crime to be a more substantial problem than unemployment or health care, Senator Dianne Feinstein (D-CA), the author of the Senate's version of the Federal assault weapons ban, stated that fear in this country has escalated to impossible levels, and she hoped that the ban on assault weapons might allow people to feel safe. Id.
4. Id.
5. Yankelovich-Clancy-Schulman poll prepared for Time and CNN (Feb. 13-14, 1989). The poll questioned 1012 adults nationwide on whether the use of guns had become an increasing or decreasing problem in the country. Eighty-four percent answered that gun use had become a greater problem. Id. More specifically, a Gallup Poll (Feb. 28-Mar. 2, 1989) reported that of 1000 adults questioned nationwide, 72% favored federal legislation banning semi-automatic assault weapons such as the AK-47. Sixty-eight percent of those favoring a ban were gun owners. Id. A more recent survey, also questioning 1000 adults nationwide on an assault weapons ban, saw the number of those in favor of such a ban increase to 77% overall. CNN/USA Today/Gallup Poll (Dec. 17-19, 1993).
6. See, e.g., CAL.PENAL CODE §§ 12275-12290 (West 1989); N.J.STAT.ANN. § 2C:39-5 (West 1990); 1993 CONN.ACTS 93-306 (Reg.Sess.); 18 U.S.C. § 921 (1994). Three states and the Federal government have enacted broad assault weapons bans. These states are California, New Jersey, and Connecticut. There are other states with less sweeping bans. Hawaii and Maryland have enacted bans that prohibit the possession of certain semi-automatic assault pistols. See, e.g., HAW.REV.STAT. § 134-8 (1994); and MD.ANN.CODE art. 27 § 36H-3 (1994). Virginia bans the Striker 12 and Street Sweeper semi-automatic folding stock shotguns. See VA.CODE ANN. § 18.2-308.8 (Michie 1993).
7. See, e.g., OMNIBUS CRIME CONTROL ACT OF 1991, REPORT ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON H.R.3371, H.R.REP. NO. 242, 102d Cong., 1st Sess. 203 (1991) (the House Judiciary Committee reporting to Congress that threats posed by criminals and deranged persons have become tragically widespread) [hereinafter H.R.REP. NO. 242]; H.R.REP. NO. 489, 103d Cong., 2d Sess., 1821 (1994) (reporting that the use of semi-automatic weapons by gangs, drug-dealers, and deranged persons continues to rise).
8. Public Safety and Recreational Firearms Use Protection Act: Hearings on H.R.4296 and H.R.3527 Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong., 2d Sess. (1994) [hereinafter Hearing on H.R.4296 and H.R.3527] (statement of John Magraw, Director of the Bureau of Alcohol, Tobacco, and Firearms). John Magraw reported to Congress that of guns traced because of their use in crime in 1990, 5.9% were assault weapons. That level rose to 8.1% in 1993. In addition, Justice Department reports indicate that assault weapons make up only 1% of total firearms in circulation. Mr. Magraw concluded, therefore, that the use of assault weapons in crimes is disproportionately high. Id.
9. Hearings on H.R.4296 and H.R.3527, supra note 8 (statement of Tony Loizzo, the Executive Vice President of the National Association of Police Organizations). Tony Loizzo testified that in the past, police used to face criminals with Saturday Night Specials (a cheaply-made six shooter). He further testified, however, that presently it was not unusual for an officer to face a criminal armed with a TEC-9 equipped with a .32 round clip. In addition to the obvious danger of facing these types of weapons, Mr. Loizzo also testified that police officers do not have the firepower to match those of the criminals. Id.
10. John J. Goldman and Helaine Olen, Train Gunman Driven by Hate Police Declare, L.A. TIMES, Dec. 9, 1993, at 1. The pistol used by Ferguson held 15 round clips, and Ferguson had over 100 rounds with him, planning to kill as many passengers as possible. Id. High capacity magazines, such as the ones used by Ferguson, are sought to be included in the definition of assault weapons by gun control groups such as HCI and are included in the New Jersey and federal bans. See, e.g., Background on the High Capacity Magazine Issue (Handgun Control, Inc., Wash. D.C.), 1994 (claiming high capacity magazines have no legitimate purpose other than for military use); N.J.STAT.ANN. § 2C:39-1(w)(3) (West 1990) (prohibiting semi-automatic shotguns with a magazine capacity greater than 6 rounds); N.J.STAT.ANN. § 2C:39-1(w)(4) (West 1990) (including semi-automatic rifles with fixed magazines capable of exceeding 15 rounds as prohibited assault weapons); N.J.STAT.ANN. § 2C:39-1(y) (West 1990) (magazines capable of holding more than 15 rounds of ammunition that can be directly and continuously fed into a semi-automatic firearm are, themselves, banned in New Jersey); 18 U.S.C. § 922 as amended by § 110102(a) (1994) (prohibiting the transfer or possession of large capacity magazines not lawfully possessed prior to the effective date of the act and defining large capacity as "magazine, belt, drum, feed strip, or similar device ... that has a capacity of ... ten rounds of ammunition ...," with 1 limited exception).
11. Hearing on H.R.4296 and H.R.3527, supra note 8 (statement of Ken Brondell Jr.). Ken Brondell Jr., the officer's brother, testified that the round that killed his sister had penetrated a car door before killing her. Weeks before her murder, Officer Hamilton had been voted the most inspirational officer in her graduating class. Id.
12. Id. Two witnesses, Michelle Scully and Steve Sposato, who both lost spouses in the shooting, testified before Congress about the incident. The gunman used two TEC DC9 assault pistols and 50 round magazines, which were purchased in Las Vegas, Nevada, because the weapons were outlawed under California's assault weapons ban. Id.
13. CAL.PENAL CODE §§ 12275-12290 (West 1989). Entitled the Roberti-Roos Assault Weapons Control Act of 1989, the California ban lists specific semi-automatic rifles, pistols, and shotguns considered assault weapons which are banned. CAL.PENAL CODE § 12276 (West 1989). The Act further provides for the prohibition of firearms that are simply variations of the specifically listed weapons, the slightly varying models to be made part of a list comprised by the Attorney General. CAL.PENAL CODE § 12276.5 (West 1989). Criteria for inclusion on the list are weapons substantially similar to a listed weapon except for slight modifications including a retractable stock, larger magazine size, shorter barrel, and different caliber, exceeding a .22 caliber rimfire. Id.
14. Church, supra note 2, at 20. Patrick Purdy committed the schoolyard shooting in January of 1989. Id.
15. CAL.PENAL CODE § 12275.5 (West 1989). The declaration of the California Legislature was based upon the findings that each of the weapons covered by the ban had a high rate of fire and ammunition capacity. Id. These characteristics caused the potential use of these weapons for sport or recreational use to be greatly outweighed by the potential danger these weapons pose to society. Id. More specifically, the Legislature found that the weapons were not only particularly dangerous when possessed by criminals but served no necessary recreational purpose. CAL.PENAL CODE § 12276 (West 1989) (historical notes).
16. Id. The Legislature stated that it was not their intent to restrict the use of weapons primarily designed for legitimate sport and hunting purposes. Id.
17. Hearings on A.B. 357 Before the Assembly Committee on Public Safety 2 (1989) [hereinafter Hearings on A.B. 357]. The bill sought only to ban weapons whose function for legitimate uses were substantially outweighed by the danger they posed to society. Id.
18. Id. at 2. This bill defined assault weapons in a generic way. Assault weapons under this early draft were defined as weapons with such a nature and high capacity and rate of firepower, that its utility as a legitimate weapon is greatly outweighed by the danger of its use to injure or kill. Id.
The weapons specifically included within this early draft were: all semiautomatic centerfire rifles with a detachable magazine of 20 rounds or more; all semiautomatic shotguns with a magazine capacity over six rounds or a folding stock and barrel length less than 19 inches; semiautomatic pistols that are simply modifications of the above rifles; firearms capable of restoration to assault weapons; and parts that can convert a weapon or be assembled into an assault weapon. Id. at 3.
Firearms that were specifically excluded were: weapons without fixed ammunition, weapons in production before 1898; bolt-action, lever-action, and slide-action weapons; single-shot weapons; multiple barrel weapons; revolving cylinder weapons; fixed magazine weapons with a capacity of 10 rounds or less; semiautomatics using Mannlicher-style clips; semiautomatics in production before 1954; rimfire weapons with a tubular magazine; short barreled shotguns and rifles; .22 caliber rimfire weapons; antiques; movie props, and weapons rendered inoperable. Id.
When presented to the Assembly Ways and Means Committee for analysis on March 8, 1989, the bill contained an amended definition that as of March 6, listed specific makes and models as assault weapons. Assembly Ways and Means Committee Analysis of A.B. 357 2 (1989).
19. THOMAS R. HEUER, REP. ON ENROLLED BILL A.B. 357 TO GOV. GEORGE DEUKMEJIAN 1 (1989) (Thomas R. Heuer was Deputy Legislative Counsel). The Roberti bill, S.B.292, also placed a ban on assault weapons. The ban of assault weapons under the Roberti bill, however, was a general ban on semi-automatic centerfire rifles with the capability of accepting magazines of 20 rounds or greater. Also banned were semi-automatic pistols that were modifications of the banned rifles. Specific models were exempted, as were models that could be described as "traditional." Hearings On A.B. 357, supra note 17, at 3.
20. See supra note 13 for enacted statute.
21. CAL.PENAL CODE § 12276 (West 1989). The list includes the following rifles: all AK series, including Chinese AK, AKM, AKS, AK47, AK47s, 56, 56S, 84S, 86S, Norinco 56, 56S, 84S, and 86S, Poly Technologies AKS and AK47, MAADI AK47 and ARM; UZI and Galil; Beretta AR-70; CETME Sporter; Colt AR-15 series; Daewoo K-1, K-2, Max 1, Max 2, AR 100, and AR 110C; Fabrique Nationale FAL, LAR, FNC, 308 Match, and Sporter; MAS 223; HK-91, HK-93, HK-94, HK-PSG1; MAC types: RPB Industries Inc. sM10 and sM11; SWD Incorporated M11; SKS with detachable magazine; SIG AMT, PE-57, SG 550, SG 551; Springfield Armory BM59 and SAR-48; Sterling MK-6; Steyr AUG; Valmet M62S, M71S and M78S; Armalite AR-180; Bushmaster Assault Rifle Calico M-900; J & R ENG M-68; and Weaver Arms Nighthawk; the following pistols: UZI; Encom MP-9 and MP-45; MAC types, RPB Industries Inc. sM10 and sM11, SWD Incorporated M-11, Advance Armament Inc. M-11 Military Armament Corp. Ingram M-11; Intratec TEC-9; Sites Spectre; Sterling MK-7; Calico M-950; Bushmaster Pistol; and the following shotguns: Franchi SPAS 12 and LAW 12; Striker 12 and the Streetsweeper type S/S Inc. SS/12. Id. Those weapons followed by the word "series" include other models that are mere variations of the listed weapon regardless of the manufacturer. Id.
22. CAL.PENAL CODE § 12276 (West 1989). Section 12276.5 allows the addition of weapons to those already prohibited as assault weapons upon request of the Attorney General and a finding by a superior court that the requested firearms have certain characteristics indicative of an assault weapon. CAL.PENAL CODE § 12276.5 (West 1989). The request must be filed in a superior court that sits in a county with a population greater than 1,000,000. Id. The court shall temporarily suspend any manufacture, sale, distribution, transportation, importation, giving or lending of the weapon if it is found to be identical to a listed weapon except for slight variations. These modifications include, but are not limited to: folding or retractable stocks; larger magazine sizes; adjustable sights; different calibers exceeding .22 rimfire; or bayonet mounts. The court shall also suspend weapons that are simply renamed, redesigned, or renumbered models of a firearm previously prohibited. Once the court grants a suspension, the Attorney General bears the burden of proof to show, by a preponderance of the evidence, that the weapon is indeed an assault weapon. If the Attorney General carries this burden, the court shall then declare the weapon prohibited pursuant to § 12276. Id.
23. CA.PENAL CODE § 12280 (West 1989). This section provides that, except in instances where an individual arranges in advance, the relinquishing of an assault weapon to the police or sheriff's department under § 12288, any person in possession of an assault weapon, except as allowed in the chapter, is guilty of a public offense, punishable by imprisonment up to one year. If the possession coincides with the commission of another crime, an additional consecutive one-year sentence enhancement may be imposed, in addition and consecutive to punishment, also with possible enhancements for assault weapons possession for the other crime. Id.
The definition of "person" under the statute is "an individual, partnership, corporation, association, or any other group or entity . . . . " CAL.PENAL CODE § 12277 (West 1989).
Notwithstanding the exceptions for registrations and permits in situations where those in possession satisfy the requirements of the grandfather clause in § 12280, the prohibition of possession under § 12280 does not apply to "the Department of Justice, police departments, sheriff's offices, marshals' offices, the Department of Corrections, the California Highway Patrol, the California State Police, district attorneys' offices or the military or naval forces of [the] state or of the United States . . . " to be used within the scope of their duties. CAL.PENAL CODE § 12280 (West 1989).
Also exempt from the prohibition on possession are: law enforcement and military agencies of other states; out-of-state entities federally licensed for distribution to federal law enforcement and military agencies and federally approved foreign agencies; executors or administrators of estates containing an assault weapon provided the weapon is properly registered and kept in compliance with § 12285; persons lawfully lent an assault weapon under § 12280(i); and non-residents importing an assault weapon for use in an organized competition provided that the person is traveling straight to and directly from the competition, the competition is conducted on a licensed target range or private target range club, the match is approved, conducted, or sponsored by a law enforcement agency or a state or national entity that promotes proficiency or education about firearms, the weapon is transported according to § 12026.1 or § 12026.2, and the person is at least 18 years of age and able to lawfully possess a firearm under California law. Id.
24. CAL.PENAL CODE § 12285 (West 1989). The prohibition does not apply to persons in lawful possession of an assault weapon during the 1990 calendar year or during a 90-day period following the designation of the firearm as an assault weapon provided that: the person was eligible to register the weapon by January 1, 1991; the weapon was lawfully possessed by that person prior to June 1, 1989 or the date of designation as an assault weapon; and the person is in compliance with the rest of the chapter. Id.
25. CAL.PENAL CODE § 12285 (West 1989). Without a permit from the Department of Justice allowing additional uses, those who register assault weapons may keep the weapons only under the following conditions: The weapons may be possessed at that person's residence, business address, other property owned by the registrant, or on another's property with that owner's express permission; the weapons may also be possessed on a public or private target range, or a target range holding a regulatory or business license, for target shooting purposes; assault weapons possessed by registered owners are also not prohibited at a shooting club licensed under the Fish and Game Code and at firearms exhibitions sponsored by law enforcement agencies or state or national entities that promote education and proficiency about firearms; and the transportation of such weapons is allowed to any of the aforementioned places and to licensed gun dealers for service and repair, provided that the gun is transported pursuant to § 12026.1 of the Code, and the dealer is licensed pursuant to § 12071. Id.
26. CAL.PENAL CODE § 12286 (West 1989). Any person lawfully obtaining a weapon between June 1, 1989 and January 1, 1990, or anyone wishing to acquire a weapon after January 1, 1990 must first obtain a permit from the Department of Justice. Permits must also be obtained for uses inconsistent with the statute. Id.
27. CAL.PENAL CODE § 12285 (West 1989). The code makes clear that under no circumstances should minors have possession of such weapons. For example, under § 12280, anyone who sells, lends, transfers, or gives an assault weapon to a minor in violation of that section shall receive a one-year sentence enhancement. Id. § 12280 (West 1989).
28. CAL.PENAL CODE § 12280 (West 1989). Subsection (a)(1) states "[a] ny person who, within this state, manufactures or causes to be manufactured, distributes, transports, or imports into the state, keeps for sale, or offers or exposes for sale, or who gives or lends any assault weapon, except as provided by this chapter, is guilty of a felony . . . " Subsection (b) provides that possession is a mere public offense with jail time not to exceed one year. Id.
29. CAL.PENAL CODE § 12280 (West 1989). There are, however, means to manufacture, distribute, import, sell, and lend without violating the statute.
Under § 12287, a permit may be obtained from the Department of Justice, upon a finding of good cause, to federally licensed manufacturers for manufacture and sale to: groups statutorily exempt from the ban, see supra note 23; persons issued permits under § 12286; entities outside the state with a federal dealer's license; federal law enforcement, federal military, and federally approved foreign agencies, and military and law enforcement agencies of other states. Id.
Under § 12285, no assault weapon may be sold or transferred after January 1, 1990 to anyone other than a statutorily licensed gun dealer. Id. § 12285 (West 1989).
Section 12280 regulates importing and lending of assault weapons. CAL.PENAL CODE § 12280 (West 1989). Under this section, anyone importing a weapon must do so only for limited sporting purposes. Id. Lending is also conditioned upon several factors. First, the person being loaned the weapon must be at least 18 years of age and not be of a class of persons statutorily prohibited from possessing firearms. CAL.PENAL CODE § 12280 (West 1989). Once the assault firearm is loaned, the legal possessor must be in the presence of the person to whom the weapon is loaned. Id. Finally, the assault weapon must be possessed at a licensed target range or private shooting club, or at a state or federally approved firearms exhibition. Id.
30. CAL.PENAL CODE § 12287 (West 1989). See also supra, note 23.
31. CAL.PENAL CODE § 12280 (West 1989). See supra, note 29 for conditions required for lending weapons.
32. CAL.PENAL CODE § 12285 (West 1989). The weapon may, however, be relinquished to the police or sheriff's department pursuant to CAL.PENAL CODE § 12288 (West 1989).
33. S.166, 204th N.J.Leg., 1st Sess. (1990) (enacted). The Act was introduced to ban the illegal possession of assault firearms by amending New Jersey statutes § 2C:39-1, § 2C:39-3, 2C:39-5, § 2C:39-9, § 2C:39-10, § 2C:43-6, § 2C:43-7, § 2C:44-3, § 2C:58-5, P.L.1983, c. 515, and by supplementing New Jersey statutes, Title 2C, chapter 58. Id.
34. Daniel LeDuc, Florio Pushing Gun Ban, Assault Weapons Would Be Outlawed, PHILA. INQUIRER, Mar. 10, 1990, at B1. Sen. Russo, an Independent, has been a longtime gun control advocate. Assemblyman Mecca, a Democrat, was a newcomer to the General Assembly when sponsorship was taken over. Id.
35. S.166, 204th N.J.Leg., 1st Sess. 4 (1990) (enacted). The bill as introduced defined assault weapons both characteristically and specifically by list. The legislation defined an assault weapon as:
[1] a semi-automatic rifle, carbine, or short rifle designed to accept a detachable magazine with a capacity exceeding 15 rounds. This definition shall not include a semi-automatic rifle, carbine, or short rifle originally designed to accept a detachable magazine of 15 rounds or less regardless of the fact that magazines of larger capacities were subsequently manufactured and made available for use with such a firearm.
[2] a semi-automatic shotgun with a magazine capacity of more than six rounds, or with a pistol grip or folding stock.
[3] a semi-automatic rifle with a fixed magazine capacity exceeding 15 rounds.
[4] a semi-automatic handgun originally designed to accept a magazine with a capacity of 18 or more rounds. This definition shall not include a semi-automatic handgun originally designed to accept a detachable magazine of 17 rounds or less regardless of the fact that magazines of larger capacity were subsequently manufactured and made available for use with such a handgun.
[5] a firearm which may be readily restored to an operative assault firearm.
[6] a part or combination of parts designed or intended to convert a firearm into an assault firearm, or any combination of parts from which an assault firearm may be readily assembled if those parts are in the possession or under the control of the same person.
An assault firearm which has been rendered permanently inoperable shall no longer be considered an assault weapon under this definition.
Assault firearm as defined above shall include, but shall not be limited to, all versions or formats of any of the following firearms or firearms manufactured under any designation which are substantially identical: Avtomat Kalashnikov semi-automatic firearms; Uzi semi-automatic firearms; Intratec TEC 9 or 22 semi-automatic firearm; Ruger Mini-14 semi-automatic firearm; Colt AR-15 semi-automatic forearm; Beretta AR-70 semi-automatic firearm; FN-FAL or FN-FNC semi-automatic firearms; Steyr A.U.G. semi-automatic firearm; Heckler and Koch HK91, HK93, HK94 semi-automatic rifles and carbines; USAS 12 semi-automatic shotgun; Valmet M-76 or M-78 semi-automatic firearms; Shotgun with a revolving cylinder such as the "Street Sweeper" or "Striker 12".
Id.
The bill exempted certain firearms from the assault weapon designation: those that do not use fixed ammunition; those that are bolt action, lever action, or slide action weapons but not semi-automatic; BB guns; air rifles; and gas and pneumatic pellet guns. The bill also lists specific weapons to be exempted, but indicates that exemptions are not limited to the list. Id.
A large capacity ammunition magazine is defined in the bill as a container capable of containing an excess of 15 rounds of ammunition that is fed continuously into the semi-automatic weapon, or a magazine capable of simple conversion into a large capacity magazine. Id.
36. SENATE JUDICIARY COMMITTEE STATEMENT TO S.166 WITH COMMITTEE AMENDMENTS, 204th N.J.Leg., 1st Sess. 3 (1990). The committee modified the definition of semi-automatic rifle to require a barrel length between 16 and 22 inches. The committee also included a provision in the amendments that required the Attorney General to compile a list of specifically-named assault weapons within 30 days of the enactment of the bill. A third amendment to the bill by the Judiciary committee required anyone appealing a denial of a license for an assault weapon to surrender the weapon to the police pending the outcome of the appeal. Upon a denial of the license, the police are required to either render the weapon permanently inoperable or retain the weapon as if voluntarily surrendered. Finally, the amendments eliminated a provision which allowed a potential license applicant to turn the firearm over to the police or other law enforcement authorities. Id.
37. Id.
38. S.166, 204th N.J.Leg., 1st Sess. 4 (1990) (second reprint). The new defining section retained the following as assault weapons: semi-automatic shotguns with greater than a six round magazine capacity, a pistol grip, or a folding stock; semi-automatic rifles with fixed magazine capacities exceeding 15 rounds; and parts or combinations of parts designed or intended to transform firearms into assault firearms, or parts from which assault weapons may be assembled if all parts are possessed by or under the control of the same person. The remaining categories of the prior definition section were replaced by listed weapons and a provision for the prohibition of weapons substantially similar to those listed. Also, there are no longer specifically exempted weapons. Id.
39. N.J. Lawmakers Approve Nation's Toughest Ban on Assault Weapons, L.A. TIMES, May 18, 1990, at 4. Considered the nation's toughest ban on assault weapons, upon its passage, New Jersey Governor James Florio stated, "[t]hese are weapons of war designed to kill as many people as possible in the least amount of time. They have no place on our streets, where too often our police find themselves outgunned." Id. A leading opponent of the ban, Democratic New Jersey Senator Raymond Zane called the ban "absolutely absurd" and said "[t]he bill is just directed at the wrong people. These people are law-abiding citizens. Some of them are clergy, lawyers, doctors, schoolteachers." Id.
40. 1990 N.J.Sess.Law Serv. 32 (West).
41. N.J.STAT.ANN. § 2C:39-1 (West 1990). The statute defines assault firearms as:
(1) the following firearms: Algimec AGM1 type; Any shotgun with a revolving cylinder such as the "Street Sweeper" or "Striker 12"; Armalite AR-180 type; Australian Automatic Arms SAR; Avtomat Kalashnikov type semi-automatic firearms; Beretta AR-70 and BM59 semi-automatic firearms; Bushmaster Assault Rifle; Calico M-900 Assault carbine and M-900; CETME G3; Chartered Industries of Singapore SR-88 type; Colt AR-15 and CAR-15 series Daewoo K-1, K-2, Max 1 and Max 2, AR 100 types; Demro TAC-1 carbine type; Encom MP-9 and MP-45 carbine types; FAMAS MAS223 types; FN-FAL, FN-LAR, or FN-FNC type semi-automatic firearms; Franchi SPAS 12 and LAW 12 shotguns; G3SA type; Galil type; Heckler and Koch HK91, HK93, HK94, MP5, PSG-1; Intratec TEC 9 and 22 semi-automatic firearms; M1 carbine type; M14S type; MAC 10, MAC 11, MAC 11-9mm carbine type firearms; PJK M-68 carbine type; Plainfield Machine Company Carbine; Ruger K-Mini-14/5F and Mini-14/5RF; SIG AMT, SIG 550sp, SIG 551SP, SIG PE-57 types; SKS with detachable magazine type; Spectre Auto carbine type; Springfield Armory BM59 and SAR-48 type; Sterling MK-6, MK-7 and SAR types; Steyr A.U.G. semi-automatic firearms; USAS 12 semi-automatic type shotgun; Uzi type semi-automatic firearms; Valmet M62, M71S, M76, or M78 type semi-automatic firearms; Weaver Arm Nighthawk.
(2) Any firearm manufactured under any designation which is substantially identical to any of the firearms listed above.
(3) A semi automatic shotgun with either a magazine capacity exceeding six rounds, a pistol grip, or a folding stock.
(4) A semi-automatic rifle with a fixed magazine capacity exceeding 15 rounds.
(5) A part or combination of parts designed or intended to convert a firearm into an assault firearm, or any combination of parts from which an assault firearm may be readily assembled if those parts are in possession or under the control of the same person.
Id.
42. Compare N.J.STAT.ANN. § 2C:39-1 (West 1990) with CAL.PENAL CODE § 12276 (West 1989). The New Jersey definition of assault weapons includes semi-automatic versions of the military M-14 and includes the Ruger Mini-14, a lightweight, compact semi-automatic rifle designed to accept the same cartridges as the M-16.
43. N.J.STAT.ANN § 2C:39-5 (West 1990).
44. Id. The statute makes it a crime of the third degree to knowingly possess an assault firearm. Under N.J.STAT.ANN. § 2C:43-6 (West 1990), crimes of the third degree may result in sentences of imprisonment for a period of three to five years. There are exceptions to this ban on possession if the weapon is licensed under N.J.STAT.ANN. § 2C:58-5, registered under § 2C:58-12, or rendered inoperable pursuant to § 2C:58-13. N.J.STAT.ANN. § 2C:39-5 (West 1990). Certain classes of people are also exempted from the prohibition. N.J.STAT.ANN. § 2C:39-6 (West 1990). These exemptions apply, but are not limited to: members of the United States armed forces and National Guard, federal law enforcement officers required to carry weapons, state police, sheriffs, county prosecutors, prison or jail wardens, and members of the police department. Id.
45. N.J.STAT.ANN. § 2C:58-5 (West 1990). Licenses may be obtained by filing an application with the Superior Court in the vicinage in which the applicant resides or, if a nonresident, where the applicant conducts business. The application must detail the reason a license is sought. No license will be granted unless the court finds that public safety or welfare necessitates its issuance. Issuance may also be conditioned by the court as public interest requires. Id.
Licenses will not be issued to anyone who is not qualified to carry a handgun. Id. No license may be granted to anyone who: has been convicted of a crime; is a drug or alcohol dependant; is suffering from a mental disorder or a physical disorder that makes it unsafe for that person to handle firearms; is under the age of 18; has knowingly falsified information on the application; or to anyone subject to a court order prohibiting possession of any firearm. N.J.STAT.ANN. § 2C:53-3 (West 1990).
46. Id. See supra note 41 for broad statutory definition of assault weapon.
47. N.J.STAT.ANN. § 2C:58-12 (West 1990). The owner of any assault weapon purchased on or before May 1, 1990 and listed by the Attorney General as being legitimate for target shooting may, within one year of the passage of the ban, register to keep the weapon. The registrant must otherwise comply with regulations to carry a firearm and submit proof of membership in a pistol or rifle club in existence prior to the enactment of the statute. There will be no consideration of the pistol or rifle club membership, however, unless the membership is granted prior to 210 days after the enactment of the statute and unless the club has filed its charter with the Superintendent of the State Police prior to 180 days after the enactment. Id.
48. N.J.STAT.ANN. § 2C:58-13 (West 1990). This provision applies to anyone in possession of an assault weapon who either does not qualify to register the weapon or who simply chooses not to. Under the statute an owner who chooses to transfer the weapon must transfer only to persons or firms lawfully entitled to possess such a weapon. Id.
Rendering the weapon inoperable as defined in the statute means to alter the weapon in such a way that makes the weapon incapable of immediate fire. Also the owner must lack the parts necessary to convert the weapon to operable capabilities. Once electing to retain an inoperable weapon, the owner must file a certification with the chief law enforcement officer in the resident's municipality or, in cases of nonresident application, with the Superintendent of the State Police. The certification must indicate that the weapon was rendered permanently inoperable and indicate the date the weapon became inoperable. Id.
Those who acquire an assault weapon through the death of the previously registered owner, notwithstanding these statutory periods, have 90 days after acquiring the weapon within which to properly dispose of it in the manner set forth above. N.J.STAT.ANN. § 2C:58-12.
Under New Jersey law, the Attorney General, within 180 days of the enactment of the assault weapons ban, and thereafter annually, is obligated to report to the legislature listing the types and amounts of assault weapons rendered inoperable and surrendered to the authorities. N.J.STAT.ANN. § 2C:58-14 (West 1990). The Attorney General is also required to list all criminal offenses committed involving assault weapons with recommendations, including amendments to the list of weapons, to be considered by the legislature. Id.
49. See supra note 24 and accompanying text for a discussion of the California grandfather clause. See infra note 118 and accompanying text for a similar discussion of the federal clause.
50. See N.J.STAT.ANN. § 2C:39-5 (West 1990). New Jersey statute § 2C:39-5 dictates that the only means of retention are through registration, licensure, or rendering the weapon permanently inoperable. If the weapon is possessed beyond one year after the enactment of the ban, the period prescribed by § 2C:58-13, and the weapon is retained outside of one of these three allowed means, possession becomes a crime of the third degree. N.J.STAT.ANN. § 2C:39-5 (West 1990).
51. N.J.STAT.ANN. § 2C:39-3(j) (West 1990). Knowing possession of large capacity ammunition magazines is a crime of the fourth degree. Conviction of a crime of the fourth degree may carry a sentence of imprisonment not to exceed 18 months. N.J.STAT.ANN. § 2C:43-6 (West 1990). The magazine may, however, be possessed if the possessor has a registered assault weapon and the magazine is used when participating in shooting competitions sanctioned by the Army Civilian Marksmanship program. These magazines may also be possessed by licensed firearms dealers for sale or disposition to other licensed dealers, the United States Armed Forces, the National Guard, or law enforcement agencies provided that records are kept of the transaction. N.J.STAT.ANN. § 2C:39-3(g) (West 1990).
Large capacity ammunition magazines, like assault weapons, may be possessed by certain classes who are exempted from the ban. Under § 2C:39-3, the prohibition on the possession of large capacity magazines does not apply to members of the Armed Forces or National Guard, except as otherwise provided, or to law enforcement officers. Id.
52. N.J.STAT.ANN. § 2C:39-1 (West 1990).
53. N.J.STAT.ANN. § 2C:39-3 (West 1990). See supra note 51 for discussion on large capacity magazines.
54. N.J.STAT.ANN. § 2C:43-6 (West 1990).
55. See N.J.Stat.Ann. § 2C:39-1 (West 1990). Semi-automatic shotguns are designated assault weapons if they have any one of the following characteristics: folding stocks, magazine capacities exceeding six rounds, or pistol grips. Id.
A pistol grip is defined in the statute as a well defined handle, similar in style to that of a handgun, protruding from beneath the weapon's action, allowing the weapon to be fired with a single hand. Id.
56. See CAL.PENAL CODE § 12276.5 (West 1989). The California ban allows for the designation of firearms as assault weapons for modifications of otherwise listed weapons. The specific modifications listed are retractable stocks, larger magazine sizes, adjustable sights, different calibers exceeding .22 rimfire, and bayonet mounts. Id.
57. See N.J.STAT.ANN. § 2C:39-9 (West 1990) regulating these activities.
58. N.J.STAT.ANN. § 2C:39-10 (West 1990). Knowing violations of regulatory provisions relating to firearms are crimes of up to the third degree. Id.
59. See N.J.STAT.ANN. § 2C:39-10 (West 1990) (discussing the regulatory provisions dealing specifically with assault weapons).
60. N.J.STAT.ANN. § 2C:39-9(g) (West 1990). The statute makes it a crime of the third degree to manufacture, transport, ship, sell, or dispose of an assault weapon while unregistered or unlicensed. Id.
61. Id.
62. N.J.STAT.ANN. § 2C:43-6 (West 1990). The New Jersey statute on sentencing states that a person convicted of a crime of the third degree may be sentenced to imprisonment for a specific term of years, fixed by the court, between three and five years. Id.
63. N.J.STAT.ANN. § 2C:39-9 (West 1990). Manufacturing, causing the manufacture of, transporting, shipping, selling or disposing of large capacity ammunition magazines, other than for authorized law enforcement or military purposes, is a crime of the fourth degree. Id.
64. N.J.STAT.ANN. § 2C:39-3 (West 1990). The statute authorizes that dealers with large capacity ammunition magazines have the capacity to possess or sell the magazines to other licensed dealers, the United States Armed Forces, the National Guard, or law enforcement agencies. Id.
65. N.J.STAT.ANN. § 2C:39-9 (West 1990). The manufacturing of both assault weapons and large capacity ammunition magazines requires registration under N.J.STAT.ANN § 2C:58-1 (West 1990).
66. N.J.STAT.ANN. § 2C:39-9 (West 1990).
67. Id.
68. N.J.STAT.ANN. § 2C:39-10 (West 1990). Knowing violation of the regulatory provisions relating to manufacturing or wholesaling firearms under § 2C:58-1, retailing firearms under § 2C:58-2, procuring a permit to purchase and carry firearms under § 2C:58-3 and § 2C:58-4 respectively, obtaining a license to possess an assault firearm under § 2C:58-5 (excluding violations under § 2C:39-5 and § 2C:39-9), are crimes of the fourth degree. Id.
69. Id.
70. N.J.STAT.ANN. § 2C:39-10 (West 1990). Pursuant to the statute, anyone giving, or causing the giving of false information or anyone who signs a fictitious name or address when applying for a permit to possess an assault weapon, or any other instrument required to possess an assault weapon, is guilty of a third degree crime. Id. Any person giving, or causing the giving of false information when registering an assault weapon under § 2C:58-12, or in the certification that the weapon was rendered inoperable under § 2C:58-13, is guilty of a crime of the fourth degree. Id.
71. N.J.STAT.ANN. § 2C:39-10 (West 1990). Any person engaged in this conduct is by statute a disorderly person. Id.
72. See, e.g., N.J.STAT.ANN. § 2C:43-6 (West 1990) (sets minimum sentencing terms for crimes committed while in possession of an assault weapon for each degree of offense). Id.
73. N.J.STAT.ANN. § 2C:39-4 (West 1990).
74. N.J.STAT.ANN. § 2C:43-6 (West 1990). This statute allows for, but does not mandate, the terms of imprisonment for the varying levels of offense. Id.
75. N.J.STAT.ANN. § 2C:43-6 (West 1990). Under this statute, any person guilty of possession of an assault weapon for an unlawful use against the person or property of another shall be imprisoned. The term of imprisonment shall include a minimum term for each degree of offense. For crimes of the first or second degree, the minimum term shall be set at 10 years; for third degree crimes, the minimum term shall be 5 years; and, for fourth degree crimes, the minimum term shall be set at 18 months. During these periods the offender shall not be eligible for parole.
These minimums result in the imposition of sentences that are more strict when crimes are committed while in the possession of an assault weapon. For example, for a crime of the first or second degree, the minimum sentence is 10 years, where normally in second degree crimes punishment is set between 5 and 10 years. Id.
The sentence shall not be mandatory unless grounds for such sentence are established at a hearing. Id.
76. N.J.STAT.ANN. § 2C:43-6 (West 1990). A person convicted of a crime under §§ 2C:11-3, 2C:11-4, 2C:12-1b, 2C:13-1, 2C:14-2a, 2C:14-3a, 2C:15-1, 2C:18-2, 2C:29-5 or 2C:35-5, while in the possession of an assault weapon, including the flight therefrom, shall be sentenced by the court to a minimum term of imprisonment. The minimum term for a first or second degree crime shall be set at 10 years, for a third degree offense, the minimum term shall be 5 years; and for a fourth degree offense, the minimum shall be 18 months. No sentencing is mandatory unless grounds for such are established at a pre-trial hearing. Id.
77. N.J.STAT.ANN. § 2C:43-6 (West 1990).
78. Id. Although extended terms are usually discretionary with the court, in the instance of possession of assault weapons in the commission of a crime where there has already been a firearms conviction, no discretion is given to the court to limit the imposition of this extended term. Id.
Extended sentences based on this section shall include minimum terms of 15 years for first and second degree crimes, 8 years for third degree crimes, and 5 years for a fourth degree crime. N.J.STAT.ANN. § 2C:43-7 (West 1990). During these periods, the offender is not eligible for parole. Where the sentence is life imprisonment, the person convicted shall not be eligible for parole for a minimum of 25 to 30 years. Id.
79. N.J.STAT.ANN. § 2C:58-5 (West 1990). The holder of the license is responsible for civil damages regardless of whether or not he or she was responsible for the commission of the crime. Even in instances where the weapon was stolen, if the license holder fails to report the theft to authorities within 24 hours of the known theft, the license holder is responsible. If the report is made within 24 hours of knowledge of the theft, liability shall not be imposed. Id.
N.J.STAT.ANN. § 2C:39-3 (West 1990) provides for the same obligations and responsibilities for owners of registered assault weapons.
80. See, e.g., N.J.STAT.ANN. § 2C:58-5 (West 1990) and N.J.STAT.ANN. § 2C:39-3 (West 1990) (discussing the obligations and responsibilities of licensed and registered assault weapons owners with respect to civil liability for the misuse of the weapon).
81. Id. See supra note 79 for discussion of statute.
82. N.J.STAT.ANN. § 2C:58-14 (West 1990). The first report of the Attorney General shall be delivered to the Legislature within 180 days after the enactment of the ban. The report shall include quantities and types of weapons surrendered and weapons rendered inoperable, and types of crimes committed involving assault weapons. Also included shall be recommendations, including potential changes, regarding the ban. Id.
83. Pub.Law No. 103-322, 108 Stat. 1796 (1994).
84. Id. Upon signing the bill into law, President Bill Clinton stated that "[i]n the last 25 years, half a million Americans have been killed by other Americans . . . and too often the system makes excuses . . . instead of being used to ... restore a sense of safety and security to the American people." Text of Crime Bill Signing Ceremony (CNN television broadcast, Sept. 13, 1994). He continued, saying that "without eroding the rights of sportsmen and women in this country, we will finally ban these assault weapons from our streets that have no purpose other than to kill." Id.
85. Pub.L. No. 103-322, 108 Stat. 1796 (codified as amended in 18 U.S.C. § 922 (1994)).
86. H.R.REP. No. 489, 103d Cong., 2d Sess. 1820 (1994). Reports by the House Committee on the Judiciary stated that the threat of criminals and deranged individuals in possession of assault weapons was tragically widespread. H.R.REP. No. 242 supra note 7, at 203. Reports also revealed that the use of assault weapons by gangs, mentally deranged individuals, and drug traffickers was growing. See, e.g., Hearing on H.R.4296 and H.R.3527, supra note 8 (statements by Chief Sylvester Daughtry, President of the International Association of Chiefs of Police, and Mr. John Pitta, National Executive Director of the Federal Law Enforcement Officers Association).
87. See, e.g., Hearing on H.R.4296 and H.R.3527 supra, note 8 (statement by Chief Sylvester Daughtry and John Pitta that assault weapons possession in the hands of criminals and deranged individuals continues to grow); H.R.REP. No. 242 supra note 7, at 203 (reporting that the carnage inflicted on the people of America by criminals with "Rambo-style" assault weapons has been "overwhelming and continuing"); Semi-automatic Assault Weapons Act of 1989 and related bills: Hearings on H.R.1190 Before the Subcomm. on Crime of the House Committee on the Judiciary, 101st Cong., 1st Sess. (1989).
88. See, e.g., H.R.REP No. 489, 103d Cong., 2d Sess. 1821 (reporting that the use of fault weapons by criminals continues to grow).
89. 18 U.S.C. § 922(o) (1992). The number of assault weapons imported to the United States rose from 4000 firearms in 1986 to 44,000 in 1988. Mr. Bennet on Gun Imports, WASH. POST, Mar. 15, 1989, at A22.
Criteria used in determining what constituted an assault weapon were whether it had a military appearance, had a large capacity magazine, and whether it was able and likely to be transformed to a fully automatic weapon. See BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS, REP. & RECOMMENDATION OF THE BATF WORKING GROUP ON THE IMPORTABILITY OF CERTAIN SEMIAUTOMATIC RIFLES 1 (1989). In considering what constitutes military appearance, the Working Group enumerated seven characteristics: large capacity magazines; folding stocks; pistol grips; flash suppressors; bipods; capacity to accept bayonets and grenade launchers; and night sights. Id. at 6-8.
90. H.R.REP. No. 489, 103d Cong., 2d Sess. 1829 (1994). The House of Representatives Subcommittee on Crime and Criminal Justice conducted hearings on assault weapons on June 12 and July 25, 1991. A ban on assault weapons and large capacity magazines which was included as part of the "Omnibus Crime Control Act of 1991" was removed by the House of Representatives on October 17, 1991 by a vote of 247-177. Id.
91. Id. This proposed ban was an attempt to close a loophole in the import ban of 1989. Michael Isikoff, House Rejects Gun Ban; Measure Targeted Assault Weapons, WASH. POST, Oct. 18, 1991, at A1.
92. Isikoff, supra note 91, at A1. In arguing that assault weapons are functionally no different than other semi-automatic weapons, Representative Bill Sarpalius (D-TX), stated that the concept of assault weapons was meaningless. He went on to question the rationale of the ban by asking, "[w]hy don't we outlaw hammers, scissors and baseball bats?" suggesting the lethality of those instruments. Id.
93. John W. Mashek, House Rejects a Ban on Assault Weapons, BOSTON GLOBE, Oct. 18, 1991, at 1. Rep. Schumer was the sponsor of the defeated ban. Id.
94. Glenn F. Bunting, Feinstein Set to Push For Weapons Ban, L.A. TIMES, Oct. 26, 1993, at 3. Senator Dianne Feinstein, a member of the Senate Judiciary Committee who hoped to play a major role in resurrecting the prospects for an assault weapons ban, id, eventually authored the Senate's version of the ban (which was later substituted by the ban drafted in the House of Representatives). Carolyn Skorneck, Senate Votes to Ban Assault Weapons, BOSTON GLOBE, Nov. 18, 1993, at 1.
95. Skorneck, supra note 94, at 1.
96. Id. In a 56-43 vote victory, the assault weapons ban was one of the final amendments to be resolved prior to the vote on the entire crime bill before it went to the House. Id.
97. Kenneth J. Cooper & Ann Devroy, Administration Presses Assault Weapons Ban; Clinton Raps 'Unreality' of Opposition; House Backers Said to Be Shy at Least 15 Votes, WASH. POST, Apr. 26, 1994, at A4. Rep. Schumer, the chairman of the House Judiciary Committee Subcommittee on Crime and Criminal Justice, described assault weapons as killing machines. Another subcommittee member, Representative F. James Sensenbrenner, Jr. (R-WI), however, opposed the bill and cited statistical information from the Justice Department reporting that assault firearms were used in less than one percent of nationwide murders. Id.
98. Id. After the proposed ban was severed from the rest of the crime legislation for separate and distinct consideration, Chairman Brooks pushed for a House floor vote early before House and Senate negotiators met to coordinate the two bills, in order to defeat the bill while support still looked weak. Id.
99. H.R.REP. No. 489, supra note 90, at 21. The Subcommittee reported favorably with regard to the amendment on April 26, 1994 by a vote of 8-5. Meeting on April 28, the Committee adopted two amendments. First, a provision was added that that the exclusion of a weapon from the list of specifically exempted firearms is not evidence that the weapon is therefore banned. It was also provided that once a weapon was specifically exempted, it could not be removed from the list as long as the Act is in effect. The second amendment deleted a provision prohibiting those convicted of violating recordkeeping requirements pertaining to grandfathered weapons from owning any firearms. Id.
The Committee reported the bill favorably by a vote of 20-15. Id. at 22.
100. Kenneth J. Cooper, On Capital Hill, Assault Weapons Ban Gains Support, WASH. POST, Apr. 29, 1994, at A38. Rep. Hyde, who voted against the ban in 1991, changed his mind based on reports provided to him by Sen. Feinstein concerning the extent of the use of the banned weapons in crime. Rep. Hyde split with the other Republicans. Id.
101. Republican Hyde Switches Sides, Votes to Ban 19 Assault Weapons, CHI. TRIB., Apr. 29, 1994, at 14. Rep. Hyde stated that he could see danger in banned weapons' proliferation which was not justified. Critics, such as Representative Bill McCollum (R-FL), maintained that there was no functional difference between the banned and exempted weapons. Id.
102. See, e.g., John Diamond, Assault Weapons Ban Short on Backers; Several Votes Needed to Pass Bill in House, BOSTON GLOBE, Apr. 18, 1994, at 3 (reporting that the NRA took out a full page advertisement in USA Today, which labeled Rep. Schumer, the ban's chief supporter, "the criminal's best friend in Congress"); Kenneth J. Cooper & Ann Devroy, supra note 97, at A4 (President Clinton used the South Lawn to criticize the arguments against an assault weapons ban and to call on legislators to consider the crime victims rather than the NRA when casting their votes); Ana Puga, Clinton, Reno Call for Assault Weapons Ban; Both Sides of Issue Testify in Congress, BOSTON GLOBE, Apr. 26, 1994, at 3 (reporting that at the House hearing on April 27, NRA lobbyist Tanya K. Metaksa accused lawmakers of wanting to take firearms away from peaceable people, and vowed the NRA would fight them "every step of the way"); and Kathy Sawyer, Bentsen Zeros in on the Gun Lobby, Legislative Ban on Assault Weapons is Pressed by Treasury Chief, WASH. POST, May 2, 1994, at A5 (Treasury Secretary Lloyd Bentsen appeared on television with a "Street Sweeper" shotgun to demonstrate the need for a ban, stating that hunting laws as they exist without the assault weapons ban work to "protect ducks more than human beings").
103. Kenneth J. Cooper & Ann Devroy, Backers of Assault Weapons Ban Make Final Push for Undecided Votes, WASH. POST, May 5, 1994, at A5. Former Presidents Gerald R. Ford, Jimmy Carter, and Ronald Reagan announced their support of the ban in a letter. Former President George Bush did not include his signature on the letter. President Bill Clinton, together with Vice President Al Gore and Attorney General Janet Reno, made progress for the ban by lobbying individual lawmakers. Supporters needed about two-thirds of the 21 undecided votes to pass the ban. Id.
104. William J. Eaton, Assault Weapons Ban Clears House by Slim Margin, Congress: Last Minute Decisions by Lawmakers Produce Dramatic 216-214 Outcome. Vote is Seen as Victory for Clinton and Major Defeat for the NRA, L.A. TIMES, May 6, 1994, at 1. The ban was approved by a 216-214 vote. Had there been one more vote against the ban, it would have been defeated in a tie. Surprise votes, like that of retiring Minority Leader Robert H. Michel (R-Ill) voted their conscience to support the ban. Representative Amo Houghton (R-NY), an NRA member, voted for the ban. Conceding that he would eventually be hurt politically, he stated that he felt it was the right thing to do. A total of 177 Democrats, 37 Republicans, and one independent supported the ban. Id. at A17.
105. Kenneth J. Cooper, Obstacle Still Stands in the Path of the Ban on Assault Weapons, Texas Democrat Jack Brooks Likely to Play Hardball in Conference, WASH. POST, May 7, 1994, at A8. Because the bill did not pass by a clear mandate (it survived by only one vote) and because he was on the losing end of the vote, House Judiciary Committee Chairman and NRA member Jack Brooks was not prepared to concede that the ban would indeed be part of the crime bill. Id.
106. Id.
107. Kenneth J. Cooper, Crime Bill Blocked in House, Health Vote Put Off; Gun Control Opponents Prevail in Stinging Defeat for Clinton, WASH. POST, Aug. 12, 1994, at A1. In a 225-210 vote, a procedural resolution that would have facilitated a final vote on the crime bill was rejected by the House of Representatives. House Judiciary Chairman Brooks downplayed the possibility of the bill returning to conference for revision. It was Chairman Brooks' plan to pressure pro-ban Republicans to change their vote and kill the ban. Id.
108. Excerpts From Clinton's Remarks on Crime Bill Vote, N.Y. TIMES, Aug. 12, 1994, at A16. President Clinton voiced his disappointment on the prospects of the House of Representatives blocking the "toughest and largest attack on crime in the history of our country at a time when the American people say it is the most important issue to them." Id.
109. Id. President Clinton accused the House of Representatives of failing the American people. He asked the House to not leave, but to stay in session until the essential elements of the crime bill were given to the American people, including the assault weapons ban. Id.
110. House Approves Crime Bill, PALM BEACH POST, Aug. 22, 1994, at A1. In a 235-195 vote, after what Democrats and Republicans agreed was a fierce legislative battle, the crime bill was passed with the assault weapons ban stripped of approximately one-third of the social programs it had contained in order to gain Republican approval. Id.
111. Helen Dewar, Republicans Not Done with Crime Bill, Gramm Plans Procedural Challenge in Senate that Could Send Legislation Back to the House, WASH. POST, Aug. 23, 1994, at A8. After the House passage of the crime bill on August 21. Senator Phil Gramm (R-Tx), among other Republican conservatives, stated that he would raise a procedural challenge in the Senate, requiring 60 votes to overcome. House Democratic leadership stated that it looked like an effort to stop the bill from ever reaching the President's desk. Id.
In a letter sent to all Senators, the President asked them simply to approve a bill they had already passed the previous November.
Although Sen. Gramm said that he was not trying to block the assault weapons ban, Senator Joseph R. Biden, Jr. (D-Del), Chairman of the Senate Judiciary Committee and a major assault weapons ban advocate, stated that the move was "all about guns." Biden vowed that the Senate might be in session for a long time because they were not going home without a crime bill. Id.
112. Neil A. Lewis, President Foresees Safer U.S., N.Y. TIMES, Aug. 27, 1994, at 6. Upon passage, President Clinton stated that the crime bill was going to make American neighborhoods safer, as well as provide that police officers would no longer be outgunned. Id.
113. Text of Crime Bill Signing Ceremony, CNN, Sept. 13, 1994. After thanking the Vice President, the Attorney General, legislators, and crime victim advocates, President Clinton stated that the new law would work to put government on the sides of the victims, not their attackers. He stated that law enforcement now had the means [referring to the ban on assault weapons] to effectively fight crime and that the bill brought the law back in line with the values of the people. Id.
114. Public Safety and Recreational Firearms Use Protection Act, Pub.L. No. 103-322, 108 Stat. 1796, 1996 (1994) [hereinafter Firearms Act]. This Act amends 18 U.S.C.A. § 922 prohibiting the possession, manufacture and transfer of semi-automatic assault weapons. Id.
115. Firearms Act, supra note 114, at 1998. Amending 18 U.S.C.A. § 921, the Act defined large capacity ammunition feeding devices as drums, belts, feed strips, magazines, or similar devices, manufactured after the enactment of the Violent Crime Control and Law Enforcement Act of 1994, with a capacity of, or ability to be readily converted to hold more than 10 rounds of ammunition. The definition does not include attached tubular devices designed for .22 caliber rimfire ammunition only. Id.
116. Firearms Act, supra note 114, at 1997. The specifically named weapons and duplicates to be banned were:
Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); Action Arms Israeli Military Industries UZI and Galil; Beretta AR70 (SC-70); Colt AR-15; Fabrique National FN/FAL, FN/LAR, and FNC; SWD M-10, M-11, M-11/9, and M-12; Steyr AUG; INTRATEC TEC-9, TEC-DC9 and TEC-22; and revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12.
Id.
117. Id. at 1997-98. The added characteristics amending 18 U.S.C. § 921 for semi-automatic rifles are the ability to accept detachable ammunition magazines and at least two of the following: folding or telescoping stocks; bayonet mounts; pistol grips protruding conspicuously from beneath the weapon's action; grenade launchers; and flash suppressors or threaded barrels designed to accept flash suppressors. Characteristics for prohibited semi-automatic handguns are the ability to accept detachable magazines and at least two of the following: ammunition magazines that attach to the pistol outside of the pistol grip; threaded barrels able to accept flash suppressors, barrel extenders, forward handgrips, or silencers; barrel shrouds; a manufactured weight being 50 or more ounces when unloaded; and when it is a semi-automatic variation of an automatic firearm. Finally, characteristics for prohibited semi-automatic shotguns were the existence of two of the following: the ability to accept detachable magazines; a telescopic or folding stock; pistol grips that conspicuously protrude from beneath the weapon's action; and a fixed magazine capacity exceeding five rounds. Id.
118. See supra note 24 for discussion of the California clause; Firearms Act, supra note 114, at 1996. The prohibition on the possession, manufacture, or transfer of assault weapons does not apply to weapons lawfully possessed under Federal law prior to and including the date of the enactment of the Act. Id. Large capacity ammunition magazines are also covered by a grandfather clause. Id. at 1998. Magazines owned on the date of the enactment of this Act are not covered by the prohibition. Id.
119. Firearms Act, supra note 114, at 1996, 1998.
120. Firearms Act, supra note 114, at 1998-99. Specifically, the lack of a serial number on a large capacity ammunition magazine shall lead to a presumption that the magazine is not subject to the ban. Id. at 1999.
121. Id. at 1996. The prohibition on assault weapons does not apply to any of the 650 firearms or their replicas or duplicates specifically listed in Appendix A to the Act. Id. The Act also provides that the fact that a weapon is not included in Appendix A does not automatically subject the weapon to the prohibition. Id. at 1997. In addition, no weapon is to be deleted from Appendix A as long as the Act is in effect. Id.
122. Firearms Act, supra note 114, at 1996.
123. Id. at 1996-97.
124. Firearms Act, supra note 114, at 1997-98. The prohibition on assault weapons does not apply to the United States, agencies or departments of the United States, states, agencies or departments of states, or possession by, or transfers to, active law enforcement officers, and retirees not otherwise prohibited from possession. Id. at 1997. Prohibition is also inapplicable to transfers to, or possession by, those licensed to possess such a weapon and their employees for the security of nuclear facilities and materials. Manufacture, transfer, and possession for the purposes of testing authorized by the Secretary is likewise exempt from the prohibition. Id.
The classes enumerated above are also exempt from the prohibition on large capacity ammunition magazines. Id. at 1998 Additionally, under this section, if a person is charged with violating the ban on large capacity magazines and asserts either that the magazine is grandfathered or that the person belongs to an exempted class, the burden of showing that the violation applies falls upon the Government. Id.
125. Id. at 1997-98.
126. See supra note 82 for discussion of the responsibilities of New Jersey's Attorney General under the assault weapons ban.
127. Firearms Act, supra note 114, at 1999. In particular, the Attorney General is to investigate the effects of the ban on violent and drug-trafficking crime. The study is to commence one year after the enactment of the Act and continue for a period of 18 months. Within 30 months of the Act's enactment, the Attorney General shall report to Congress, detailing the findings and determinations made in the study. Id.
128. Id. at 1999.
129. See, e.g., Keith R. Fafarman, State Assault Rifle Bans and the Militia Clauses of the United States, 67 IND.L.J. 187 (1991) (stating that due to limits imposed by the necessity for weapons suitable for service in a militia, bans on assault weapons violate the Second Amendment); Robert O'Hare, An Uncertain Right: The Second Amendment and the Assault Weapon Legislation Controversy, 66 ST. JOHN'S L.REV. 179 (1992) (claiming that the Second Amendment guarantees each individual the right to keep and bear arms, even though legislators and courts do not give much weight to that right); Jay R. Wagner, Gun Control Legislation and the Intent of the Second Amendment: To What Extent Is There An Individual Right to Keep and Bear Arms?, 37 VILL.L.REV. 1407 (1992) (stating that the individual's right to keep and bear arms is a right guaranteed by the Second Amendment, and that to limit this right by the militia clause is creating "a fiction"); Eric C. Morgan, Assault Rifle Legislation: Unwise and Unconstitutional, 17:2 AM.J.CRIM.L. 143 (1990) (claiming that assault weapons are protected under the Second Amendment).
130. U.S. CONST. Amend. II.
131. W. RIKER, SOLDIERS OF THE STATES: THE ROLE OF THE NATIONAL GUARD IN AMERICAN DEMOCRACY 11-12 (1957). The law of the several colonies, and later States, required that all able bodied men, initially limited to white males, enroll in the militia and provide their own weapons. Id.
132. Id.
133. U.S. CONST. art. I, § 8, cls. 1, 16. The Constitution granted Congress the power to organize, arm, discipline, and call the Militia. The power to train the Militia was left to the states. Training was, however, to be in accordance with the discipline set forth by Congress. Id.
134. Militia Act, ch. 33, 1 Stat. 271 (1792). This was the first attempt by Congress to regulate the Militia under the power granted it by the Constitution. The Act essentially called for all free and able bodied white males between the ages of 18 and 45, excluding statutorily exempted persons, to comprise the Militia and provide their own weapon, basically codifying existing State militia law. Id.
135. Keith A. Ehrman & Dennis A. Henigan, The Second Amendment In The Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L.REV. 5 (1989). State militias between the 1800s and the 1870s have been all but abandoned. Infrequent training, mustering, and a growing list of exemptions led to a functionally defunct militia system. Id.
136. Militia Act of 1903, ch. 196, 32 Stat. 775 (1903). The Act established two classes of militia. The first class, an organized militia, was the National Guard of the States, Territories and District of Columbia. The Act provided for the arming of this organized militia. The second class, unorganized or reserve militia, consisted of those eligible for militia service who were not in the organized militia. There was no statutory provision for the arming of this second group. Id.
While the Federal government has the responsibility of training, providing equipment, and funding, the States have the concurrent power to mobilize the National Guard, functionally retaining the unit as a State militia. Id.
137. Id. See supra note 136 and accompanying text for discussion of the Dick Act.
138. Id.
139. See, e.g., O'Hare, supra note 129, at 182 (stating that individual rights advocates view the Second Amendment as creating an unequivocal right to bear arms); Fafarman, supra note 129, at 194 (claiming that due to the lack of arms provided the "unorganized militia," the Second Amendment mandates that they arm themselves); Wagner, supra note 129, at 1458 (arguing that the original intent of the framers was to guarantee individual rights which is necessary to insure against Government tyranny, regardless of the National Guard).
140. Morgan, supra note 129, at 164. The author states that the Framers of the Bill of Rights consistently used the phrase "right of the people" to connote individual rights. Id.
141. 307 U.S. 174 (1939). The Miller case involved two individuals who were transporting unregistered sawed-off shotguns across state lines. The issue was whether the Second amendment barred prosecution of the individuals. Id. at 177.
142. Miller, 307 U.S. at 178. The Court found that the obvious purpose of the Amendment was to "assure the continuation and render possible the effectiveness of such forces" as declared by the Second Amendment. Id.
143. Id. at 178. The weapons at hand were sawed-off shotguns. The Court, in the absence of contrary evidence, declared these weapons unnecessary to the preservation and efficiency of the well regulated militia. A reasonable relationship test was used in the determination of whether the weapon was essential for "the preservation and efficiency of a well regulated militia." Id.
144. Id. at 179. The Court refers to the militia as "a body of citizens enrolled for military discipline." Id. This connotes a group application rather than a gathering of the armed public. The Court also referred to pre-Second Amendment laws insuring possession rights to those subject to military service, implying that the same criteria were true post-Second Amendment. Id. at 180.
145. See infra notes 150-52 for a discussion of the several courts' interpretations of the right granted by the Second Amendment.
146. See supra note 136 for a discussion of the arming provision of the Dick Act.
147. Militia Act of 1903, ch. 196, 32 Stat. 775 (1903). Under the Dick Act those not serving in the organized militia, the National Guard, were to comprise an unorganized militia. Id.
148. See, e.g., Fafarman, supra note 129, at 205 (arguing that States are preempted from prohibiting assault weapons from possession because it would prevent the unorganized militia from arming itself with weapons suitable for militia service).
149. See 18 U.S.C. § 922(b) (4) (Supp. V 1987). Machine guns have been highly regulated since 1934, and the private possession of these weapons was completely banned in 1986. Id.
150. In Cases v. United States, 131 F.2d 916 (1st Cir.1942), the First Circuit Court of Appeals rejected the assertion of Second Amendment rights in an attempt to reverse a conviction for interstate transport or receipt of a firearm by a fugitive or person convicted of a violent crime. The Court recognized that the weapon in question was one which could have a purposeful military use. The assertion was rejected, however, due to the fact that the defendant was not contributing to the maintenance of a militia, thus, the weapon must not have been either. The Court continued to hold that the Second Amendment exists for the maintenance of a militia, not to protect possession of weapons by individuals simply on a "frolic of their own." Id. at 923.
151. Id. The Third Circuit in United States v. Tot, 131 F.2d 261 (3d Cir.1942), likewise held that without a showing of a relationship between possession of the particular weapon, rather than wholesale possession of weapons of all, and the maintenance of a well-regulated militia, the Second Amendment was not implicated to protect any possessory rights. Id. at 266.
The Sixth Circuit Court of Appeals in Stevens v. United States, 440 F.2d 144 (6th Cir.1971), stated that the rights under the Second Amendment apply only to the State's maintenance of a militia, and not to rights of individuals to bear arms. Therefore, there can be no claim on the part of individuals that constitutional rights were violated by the denial of possessory rights. Id. at 149.
152. The Sixth Circuit Court of Appeals specifically stated in United States v. Warin, 530 F.2d 103, 106 (6th Cir.1976), that the Second Amendment guaranteed a collective, rather than individual, right. The Third Circuit Court of Appeals concurred in Eckert v. City of Philadelphia, 447 F.2d 610 (3d Cir.1973), holding that "the right to keep and bear arms is not a right given [individuals] by the United States Constitution." Id. at 610. In United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974), the Fourth Circuit Court of Appeals also held that the Second Amendment confers only a collective right to keep and bear arms for the purpose of maintaining a well-regulated militia. This holding was based on the Supreme Court's reasoning in United States v. Miller, 307 U.S. 174 (1939).
The Supreme Court recently reaffirmed its collective rights theory in Lewis v. United States, 445 U.S. 55 (1980), stating that "legislative restrictions on the use of firearms are neither based upon Constitutionally suspect criteria, nor do they trench upon any Constitutionally protected liberties." Id. at 65 n. 8.
153. See supra notes 150-52 for court interpretations of arms related to a "well regulated militia."
154. In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court held that the Second Amendment did not apply to the states. The case involved defendants who were charged with interference with the laws of the United States, including the Second Amendment. The Court held that the Amendment only prohibited the interference of Congress; the Amendment has no force other than to restrict the powers of the United States Government. Id. at 553.
This holding was reaffirmed in Presser v. Illinois, 116 U.S. 252, 265 (1886). Presser involved an Illinois statute prohibiting the assemblage as a military unit any group other than the regulated militia. Id. at 256-57. When challenged on Second Amendment grounds, the Supreme Court reiterated the holding of Cruikshank, stating that the Second Amendment only safeguarded against Federal action. Id. at 265.
155. B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897). This case was the first instance in which the Supreme Court incorporated an Amendment of the Bill of Rights, specifically, the Fifth Amendment, so that it applied to the states through the Fourteenth Amendment. Id. at 241.
156. See supra notes 141-152 and accompanying text for a discussion of court-interpreted rights under the Second Amendment. Since no Second Amendment incorporation case has come before the Supreme Court, it is speculative whether the Supreme Court would incorporate the Amendment, especially in light of the fact that the Amendment has consistently been applied to insure that the Federal Government could not infringe the rights of the State militia, and no rights are specific to individuals that States may infringe upon. Id.
157. See, e.g., O'Hare, supra note 129, at 191-92 (stating that the reasoning of the Supreme Court in its pre-incorporation cases cannot withstand close scrutiny due to the eventual incorporation).
158. See supra notes 141-152 and accompanying text discussing parameters of the Second Amendment safe.guards.
159. Presser v. Illinois, 116 U.S. at 265. In Presser, while holding that the Second Amendment did not apply to the States, the Supreme Court found that the Supremacy Clause of the United States Constitution does limit the authority of the States to prohibit the possession of weapons to the extent that it interferes with the Federal government's rights per the militia. Id.
160. Id.
161. See supra notes 141-152 and accompanying text.
162. See, e.g., CAL.PENAL CODE § 12280 (West 1989) (exempting from the ban state and federal military groups); N.J.STAT.ANN. § 2C:39-3 (West 1990) (specifically exempting the National Guard from prohibitions on weapons and large capacity magazines); and Pub.L. No., 108 Stat. 1796, 1997 (1994) (exempting agencies of the United States and each State from the weapons and magazine ban).
163. Political/Media Research Inc. poll May 23-25, 1992. In New Jersey, a poll questioning 807 registered voters statewide reported that 78% of those questioned would like to see their assault weapons ban repealed. In a CNN/USA Today/Gallup Poll of 1,000 adults questioned nationwide, December 17-19, 1993, 77% favored the ban on assault weapons. Finally, in an NBC/Wall Street Journal poll conducted on April 16-18, 1989, of 1,447 adults polled nationwide, 74% thought the federal government should ban the sale of assault weapons in the United States. Sixty-six percent of gun owners who were asked the same question responded affirmatively.
164. Hearings on H.R. 4296 and H.R. 3527, supra note 8. Dr. Suzanna Gratia testified:
I am mad at my legislators for legislating me out of a right to protect myself and my family. I would much rather be sitting in jail with a felony offense on my head and have my parents alive. As far as these so-called assault weapons, you say they don't have any defense use. You tell that to the guy I saw on a videotape of the Los Angeles riots standing on his rooftop protecting his property and his life from an entire mob with one of these so-called assault weapons. Tell me he didn't have a legitimate self-defense use.
Id. Ms. Jacquie Miller, who was shot several times with a semi-automatic weapon and left for dead, now permanently disabled testified:
It completely enrages me that my tragedy is being used against me to deny me and all the law abiding citizens of this country the right of the firearm of our choosing. I refuse in return to use my tragedy for retribution against innocent people just to make myself feel better for having this misfortune.
Enforce the laws against criminals already on the books. After all, there are already 20,000 of them.
More won't do a thing for crime control. You cannot ban everything in the world that could be used as a weapon because you fear it, don't understand it, or don't agree with it.
Id.
165. HANDGUN CONTROL, INC., WHY WE NEED TO BAN ASSAULT WEAPONS 1 (1994). The materials cite a study done by the Bureau of Alcohol, Tobacco and Firearms analyzing gun trace reports through 1991.
166. Id. Assault weapons traced in crimes, accounted for 8.4% of the total amount of firearms traced. This led the ATF to the conclusion that assault weapons were 17 times greater than conventional weapons to be traced to crime. Id.
167. Assault Weapon Import Control Act of 1989: Hearings on H.R.1154 Before the Subcomm. on Trade of the House Comm. on Ways and Means, 101st Cong., 1st Sess. (Apr. 10, 1989). These hearings discussed several assault weapons legislative proposals, specifically relating to their use in crime. Id.
168. Id. There was testimony in the hearings that only four percent of homicides in the United States involved rifles of any type. Assault rifles used in homicides comprised less than one half of a percent of the total used. Id.
169. 135 CONG.REC. E1930 (daily ed. May 31, 1989) (statement of William Dannemeyer of California). House Republican F. James Sensenbrenner Jr., testifying before Congress, presented a chart showing that assault weapons are responsible for less than one percent of the murders in the United States. Ana Puga, Clinton, Reno Call for Assault Weapons Ban; Both Sides of Issue Testify in Congress, BOSTON GLOBE, Apr. 26, 1994, at 3.
170. See, e.g., H.R.REP. No. 489, supra note 90 1821 (reporting testimony of federal law enforcement officers that assault weapons have become the weapons of choice for hate groups, drug dealers, and the mentally unstable).
171. James M. Perry, Police Chiefs Increasingly Call for Gun Control, Prompting Personal Retribution From the NRA, WALL ST. J., Apr. 7, 1989, at A16. George R. Wilson, chief of the firearms division for the Washington, D.C. police department reported that drug dealers most commonly use nine millimeter pistols, not the sophisticated and expensive assault weapons as commonly thought. Id.
172. Id. at B1. A spokesperson for the Washington, D.C. police department reported in the Washington Post on March 6, 1989, that they see assault weapons occasionally, but those incidents are rare. A representative of a national police officer's organization testified to Congress that it was not at all unusual for police officers to encounter an assault weapon such as a TEC 9. H.R.REP. No. 489, supra note 90, 13.
173. The Antidrug, Assault Weapons Limitation Act of 1989, S.REP. No. 160, 101st Cong., 1st Sess. 6-8 (1989). In a study conducted by Tulane sociologist James D. Wright, findings corroborated the notion that criminals mostly acquire their weapons by illegal means. The study showed, in fact, that merely 16% of handguns possessed by criminals were obtained through legal sources. J. WRIGHT AND P. ROSSI, ARMED AND CONSIDERED DANGEROUS 182-84 (1986).
174. David Freed and John Hurst, Police, Gang Members Alike Doubt Ban's Effectiveness, L.A. TIMES, Feb. 8, 1989, at 20. Los Angeles gang member Rick Hardson stated that although the weapons were illegal, everything gangs do is illegal and that the ban did not affect him. Id.
175. Press Release from the Office of the Attorney General, Attorney General DelTufo Releases 1992 Assault Weapon Report and a New Study on Assault Weapon Crimes (Jan. 19, 1993) (on file with the Seton Hall Legislative Journal). In the Attorney General's report in the State of New Jersey, First Assistant Attorney General Frederick DeVesa reported: "[T]his study clearly shows that enforcement of the assault firearms law does not impact most heavily on law abiding citizens. Virtually all arrests for assault firearms violations involved individuals who were engaged in other illegal activity or who had criminal histories." Id.
176. THE CAMPAIGN TO CRIMINALIZE GUN OWNERSHIP 2 (National Rifle Association 1994). The NRA contends that these bans work to prohibit weapons labeled "evil" simply because of a military appearance. The "truth," they state, is that assault weapons are functionally identical to semi-automatic weapons of 100 years ago. Id.
177. See supra note 1.
178. See supra note 176 for NRA comment on guns' appearances.
179. The Assault Weapons Ban Questions and Answers 2 (Handgun Control, Inc., Wash. D.C.), 1994, at 2. HCI distinguishes assault weapons from other semi-automatic weapons through the existence of "combat hardware" characteristic of assault weapons. The characteristics include: large capacity ammunition magazines capable of firing several rounds without reloading; folding stocks for greater concealability; pistol-grips, which allow the shooter to fire from the hip, increasing indiscriminate fire; and barrel shrouds designed to cool the weapon's barrel, allowing rapid succession firing without overheating and the ability to grasp the barrel also for indiscriminate firing. Id.
180. See supra note 179 for the different characteristics.
181. See supra notes 173-74 and accompanying text.