ASSAULT RIFLE BAN ON THE HORIZON
Liberals cannot let go of their fascination with, and fear (real or feigned) of, “assault weapons,” constantly introducing new legislation to ban them. During the 2008 campaign, Barak Obama said that he would like to restore and make permanent the federal ban on these firearms enacted in 1994 which automatically expired in 2004. His Attorney General, Eric Holder, has said the same thing.
Even the hapless and bumbling Jimmy Carter, writing in the New York Times, expressed regret that the ban had been allowed to expire. However, as passionately as they appear to wish for the ban to be restored, most antigun liberals don’t seem to have a clue why banning them would benefit the American people as a result of the ban.
The Violence Policy Center (VPC), who pushed for the ban in the first place, made it clear that the expiration of the law would have little or no impact on public safety. This was so, they argued, because manufacturers merely made minor modifications in the appearance of their products and thus were able to evade the “spirit of the law.” In 1988 VPC staffer Josh Sugarman wrote a memo in which he suggested that resistance to a ban on handguns was so strong that the antigun crowd should give it up and take up, instead, a campaign to ban “assault weapons,” because they look like military firearms, giving the sly hint that these are actually machine guns.
DEMS GOT CREAMED
Six years later the plan paid off, the ban passing the Senate and barely making it through the House by two votes. Bill Clinton signed it into law in September of 1994, just six weeks before the Congressional elections. The Democrats were crushed in the elections. Even the Speaker of the House, Tom Foley, was defeated for re-election.
The Democrats messed up, for example, running a full-page ad with a photograph of what appeared to be a hooded Ku Klux Klan member holding an AR-15, with a printed question asking why the NRA wanted the KKK to have assault weapons. The focus was not only on the lurid tales of the (imaginary) dangers posed by the firearms but also on the fact that the NRA opposed all such legislation.
The “assault weapon” campaign was, and is, based upon fraudulently presenting to the public bizarre tales intended to frighten people and to imply that these are really machine guns, not semiautomatics.
Let’s take a look at the ban. It does not support the claim that the functional characteristics of “assault weapons” render them objectionable. My friend David Hardy is an Arizona attorney who has written extensively on the Second Amendment and has handled a large number of firearms-related legal matters. His analysis of the law shows that the people who wrote it, far from having identified what they object to in “assault weapons,” did not have a clue what they doing.
The most glaring example, Hardy pointed out, was the inclusion on the list of the Steyr AUG. The antigun crusaders had regaled us with lurid tales of blood in the streets attributable to “assault weapons” and claims that they were “the weapon of choice” of drug dealers. Yet Stephen Higgins, former director of the BATF, testified in Congress that to his knowledge the Steyr AUG had never been used in a violent crime in the United States. Ergo—Hardy’s claim that the list was created not by consulting crime statistics, but by looking at pictures of guns and deciding which ones looked scary.
The preface to the list extends the ban to “any of the firearms, or copies or duplicates of the firearms in any caliber, known as. . .” The first two entries are (i) Norinco, Mitchell, or Poly Technologies’ Avtomat Kalashnikov, and (ii) Action Arms Israeli Military Industries’ Uzi and Galil. As Hardy points out, the rules which courts use to interpret statutes require that every word in a statute, if possible, be given explicit meaning. The use of the phrase “copies or duplicates” means that a “copy” is something different from a “duplicate.”
Those same rules would dictate that the inclusion of the Galil on the list, separately from the Kalashnikov, would be construed to mean that the Galil is neither a copy or a duplicate of a Kalashnikov. Get real. The Galil uses the Kalashnikov gas operating system and, in appearance, can scarcely be distinguished from other Kalashnikovs. This means that even minute differences would preclude being classified as either a copy or a duplicate.
Then there is the phrase “in any caliber.” 20 mm is a caliber. So is 37 mm. So is 155 mm. The TEC9, a handgun, is listed. As far as I know the only firearm that can accommodate a 155 mm projectile is so heavy that only the CH53E helicopter can lift it. An artillery piece, on wheels, might still qualify as a copy or duplicate of the TEC9. The definition includes firearms which bear no resemblance to each other, but excludes firearms with even tiny differences.
THEY HUNG THEMSELVES
During the term of the law I was an NRA attorney. I received a call from a federal defender who had a client who had robbed a bank using a MAADI rifle, asking my advice. The US attorney, eager to get an enhanced sentence, put a BATF agent on the witness stand who said he had compared every single operational part of the MAADI to a NORINCO Kalashnikov. The two firearms were identical.
The NRA had challenged the assault weapon ban as being void for vagueness. We lost on standing when the government produced an affidavit asserting that regarding any questions as to what the law means or how it was to be applied, the only appropriate authority to answer the question was the Technical Branch of BATF. I provided defense counsel with a copy of the document and told him to move to have the testimony of the BATF agent stricken based on its directive. As we expected, the Technical Branch pointed out that the MAADI rifle did not fit any statutory definition of “semiautomatic assault weapon.”
A MAADI is a Kalashnikov. I can’t think of a better way for them to have found out that it was a stupid law than to have lost such an obvious case for an enhanced sentence.
“SEMIAUTOMATIC ASSAULT WEAPON”
The statute gives a second definition of “semiautomatic assault weapon” which has no relation, either functionally or otherwise, to the first definition. It includes any semiautomatic firearm capable of receiving a detachable magazine, and having two or more of the following features: a pistol grip which protrudes conspicuously below the action of the firearm, a bayonet mount, a flash suppressor, a grenade launcher, and a folding or telescoping stock. As lurid and dishonest as the tales of horror and mayhem had been during the campaign to pass the law, not even Charles Schumer tried to pretend that drug dealers were being killed in bayonet charges. That would be beside the point, since a bayonet mount, if it were the only one of the banned features on a rifle, would be legal. The same applies if the rifle had a grenade launcher. The authors of the ban somehow believed that the operation of a folding or telescoping stock, when amplified by a pistol grip, made a rifle unacceptably lethal. The five features bear no functional relationship to each other. The presence of one neither adds to, nor detracts from, the function of another if the other were present.
GUNOWNERS—A TRIBE OF SCARY, UNWASHED BACKWOODSMEN
The banned features were merely an arbitrary and capricious definition of “semiautomatic assault weapon.” Guns were not the target, gun owners were. To the liberal elite, rural people who own guns and drive pickups are a tribe of unwashed backwoodsmen who scare the hell out of them. The recent report by the Department of Homeland Security on “right wing extremists“ suggested that one of the greatest terrorist dangers America faces is returning combat veterans.
Washington Post’s Tony Kornheiser, after the people of Montana instituted an unlimited speed limit on its interstate highways, said on his radio program, "the people in West Virginia look like Lincoln Center on opening night.”
In conflict the first task is to know your enemy. We know that our opponents cannot present a coherent argument in defense of their position because they base their positions on emotion, not reason. We need facts to fight them.
MY PLAN OF ACTION
Here is what I plan to do, and I would suggest that others do the same. I will ask my congressman, who is a staunch defender of the Second Amendment, to pose the following questions to the Technical Branch of ATF and/or the FBI: 1. Is there any evidence that a Steyr AUG has ever been used in a crime in the United States? If so, are there any distinguishing functional characteristics of the AUG such that the crime could only have been committed with this firearm and no other?
2. Is there any evidence of crimes committed in the United States by firearms equipped with two or more of the following items: pistol grip, bayonet mount, flash suppressor, grenade launcher, and telescoping or folding stock? If so, how many of these crimes were only made possible by the functional interrelationship of these items?
Many of you will have other questions that show the silliness of our opponents’ definition of “semiautomatic assault weapons.” Our opponents remember what happened to Democrats the last time an “assault weapon” ban was passed in the U.S. Congress. If we start writing now, and our representatives start asking such questions, we make a preemptive strike, showing them that we are still active, just as we were when they got their butts kicked.
______________James H. Warner retired from the legal office of the National Rifle Association in 2005. He served as domestic policy advisor to President Reagan from 1985 to 1989. Earlier in his distinguished service career, he was shot down on 13 October, 1967 in a F-4B Phantom where he was a “back-seater.” He spent five years in the Hanoi Hilton as a guest of the North Vietnamese government, where he was tortured, and as a neighbor of now-Senator John McCain.