Should Congress Pass A New "Assault Weapon" Ban?
Assault Weapons: Myths vs. Reality
In this upcoming Minnesota Law Review article, I deconstruct the most common arguments from gun control advocates for the passage of a new “assault weapon” ban.
Should Congress Pass a New Assault Weapons Ban?
Abstract
Ever since our nation’s previous “assault weapon” ban (AWB) expired in 2004; gun control advocates have argued for its reinstatement. This research provides an in-depth look at the best arguments made by gun control advocates to justify the passage of a new “assault weapon” ban that would be like that which was passed in 1994 as part of The Federal Violent Crime Control and Law Enforcement Act of 1994.
Part 1 will assess claims that the previous assault weapon ban achieved its aim of reducing violent crimes in which an “assault weapon” was used, and that the ban was especially effective at reducing the number of mass-shootings in the country.
Part 2 will examine the argument that what is being banned is a “military-style” rifle with no valid use among private citizens for lawful purposes such as hunting and personal defense. As such, proponents of a renewed ban say assault weapons fall outside any category of weapons protected by the Second Amendment.
What Is an Assault Weapon?
While it is impossible to give any kind of coherent, functional definition to the term assault weapon, since the only literal and legal definition of the term simply refers to any weapon used in an assault. See People v. Alexander, “[A] tire iron that was believed to be the assault weapon.” (People v. Alexander, 1993, p. 193). In 1994, Congress passed a law defining and restricting “semi-automatic assault weapons”—itself an oxymoron—to include a short list of named firearms, such as “Colt AR-15,” as well as certain firearms (mostly semi-automatic rifles with detachable magazines) with two specified generic characteristics, such as a “bayonet mount” and a “pistol grip that protrudes conspicuously beneath the action of the weapon.” (Chapman, 2019).
But generally speaking, “assault weapon” has come to be a political term with no fixed meaning, it can mean anything the speaker wants it to mean. One legislature’s assault weapon warranting a prohibition and felony penalties is another legislature’s sporting rifle not subject to special restrictions. Even legislatures seeking to ban assault weapons define them in different and contradictory ways. So-called assault weapons are semiautomatic firearms that, just like all other semiautomatic firearms, fire one round for each pull of the trigger (Jacobs, 2015). The features that make an otherwise legal semiautomatic firearm an “assault weapon” under various laws do nothing to affect the firearm’s functional operation and, if anything, promote safe and accurate use (Halbrook, 2016). "Assault weapons" is ultimately a pejorative term that has long been portrayed as an exceptionally powerful firearm designed for killing large numbers of people.
In recent years, the United States has witnessed a renewed push for stricter gun control measures, particularly the introduction of a new assault weapon ban. However, this proposal raises significant concerns regarding its effectiveness, constitutionality, and potential impact on law-abiding citizens. Such a ban would not truly address the complexities of gun violence and simply serve as a superficial solution that fails to target the underlying causes.
Assault Weapons Ban: Myth vs. Reality
While handguns are the overwhelming weapon of choice for mass shooters, with 76% of all mass shootings being carried out by an individual armed with a handgun; while 58% of all mass shootings are carried out by individuals armed only with a handgun, whereas rifles of every kind are used in only 3-4% of murders nationwide (Wallace, 2020). Though the banned guns and magazines were used in only a modest fraction of gun crimes before the AWB, it was hypothesized that a decrease in their use might reduce gunshot victimizations, particularly those involving multiple wounds and/or victims (Prohibit Assault Weapons, n.d.).
In response to a Congressional mandate for an impact assessment of the assault weapons ban, following the law’s expiration in 2004, these studies utilized national and local data sources and a variety of analytical techniques to examine the ban’s short-term impact on gun violence. The ban made no measurable contribution to a reduction in gun homicides and found no evidence of reductions in multiple-victim gun homicides or multiple-gunshot wound victimizations (Koper, 2004).
Additionally, the assault weapons ban did not show any discernable drop in the number or frequency of mass shooting events (Koper, 2004). Despite the continuing protestations by notable AWB advocates in recent years, that the AWB was effective, including one of the AWB’s original sponsors and current President Joe Biden. Their factually unsupported assertions that the number of mass shootings had decreased during the period of the initial ban from 1994 to 2004, has been reaffirmed by subsequent studies in the intervening years, including an updated study conducted by The Marshall Project, at the behest of the Biden Administration, following an October 2023 mass shooting in Lewiston, Maine—The Marshall Project divides its analysis into five-year periods so that no one-year outlier muddles the matter. That analysis found that in every five-year period during which the original ban was partly or totally in effect, mass shooting incidents were higher than in the two five-year periods prior to the first ban. When it comes to casualties, the five-year period fully covered by the ban (1997–2001) saw 25 percent more mass shooting casualties than 1982–86 and 34 percent more than 1987–91 (Doherty, 2023).
Weapons of War?
But just because these assault weapons are used in an exceedingly rare number of mass shootings and Congress found their previous assault weapon ban didn’t lead to any of the predicted drops in gun homicides and mass shooting events that its proponents predicted, what about their other justification? That assault weapons are “weapons of war” which are so much more powerful and lethal than other rifles in common use, that the only place they belong are in the hands of soldiers on a battlefield (Prohibit Assault Weapons, n.d.).
There is, perhaps, a strong argument to be made here for an inherent manifestation of institutional and systemic racism within the gun control community when one considers that a staggering 87% of Americans who say they believe in the need for “common sense gun control” can look at a traditional “hunting-style” rifle with a wooden stock and a scary looking black “military-style” rifle, in a side-by-side comparison and conclude that even when they are functionally identical, as they use the same caliber of ammunition, hold the same number of rounds in their magazine, have an identical rate-of-fire and a comparable muzzle velocity, they will never-the-less argue the more traditional hunting-style rifle with a wooden stock should be legal to own for lawful purposes; while conversely concluding the scary black rifles are too dangerous to tolerate, as these black rifles pose a uniquely dangerous threat to the wider community who have no choice but to live amongst them (Farago, 2016).
However, this research does not seek to shame or vilify the vast majority of Americans that have joined the cry for “common sense gun control.” These are largely good and decent people with the very laudable aim of reducing the levels of violent crime in our country. So much of the “military-style” rifle distinction is a nescient argument, driven by a select few gun control lobbyists who willfully lied to the public by conflating two very similar sounding, but very different terms that have come to be used interchangeably among gun control advocacy groups, corporate media and politicians.
Assault Weapons vs. Assault Rifles
Even though “assault weapon” and “assault rifle” are two very distinct terms with distinct meanings, they have largely come to be perceived as entirely interchangeable. Yet there is a vast difference between the definition of an “assault rifle” which does refer to a type of military service rifle, which have already been prohibited to purchase by private citizens for nearly 40 years. On the other hand, we have the amorphous term “assault weapon” which, in this context could be said to describe any semi-automatic sporting rifle with a “military-style” appearance as defined in Part 1 and the AWB statutory definition. The term “assault rifle” is used by the military to describe a selective-fire rifle such as the AK-47 that fires both fully automatically and semiautomatically. The M-16 selective-fire service rifle came to be the American military’s “standard assault rifle.” Federal law defines the M-16 as a “machinegun,” i.e., a “weapon which shoots . . . automatically more than one shot, without manual reloading, by a single function of the trigger.” (Halbrook, 2016).
By contrast, a semiautomatic firearm can only fire a single shot with each pull of the trigger. The latter type of firearm is extraordinarily common nationwide; they have been part of the landscape in America for over 100 years. AR-15s have been in commercial production since the 1950’s (Halbrook, 2021). But the production of civilian rifles that fire only in semiautomatic mode and that have cosmetic features that look like those of military rifles gave gun prohibitionists the idea of calling them assault weapons to promote banning them (Jacobs, 2015).
In a now infamous white paper, written in 1989 by a lobbyist with the Violence Policy Center they argued:
“The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semiautomatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun— can only increase the chance of public support for restrictions on these weapons.” (Sugarman, 2015, p. 2).
In fact, the AR-15 and other AR-style rifles and carbines are so well-suited to self-defense in a civilian context, the Department of Homeland Security quite literally defines these rifles as “personal defense weapons.” (English, 2022).
When we examine even the most in-depth claims about military-style semi-automatic rifles like the AR-15, such as the belief that pistol grips and hand guards facilitate mass murder by enabling shooters to spray fire from the hip; that certain features are useful in combat and crime but not in sporting applications; and whether such firearms are “commonly used” for lawful purposes (Chapman 2020).
Examining the history of civilian and military firearms design; U.S. Army marksmanship doctrine; military doctrine respecting infantry combat; prior research on topics including the impact of magazine capacity on casualty rates in gun crime, the efficacy of various calibers of ammunition in self-defense; and other relevant topics, all such evidence leads to only one conclusion; that the AR-15 is not a military weapon; that it is useful for and used in all legitimate civilian shooting applications; that it is not deadlier than other firearms in criminal assaults including mass public shootings (Chapman, 2020) and the misleading claims about the AR-15 by gun control advocates undermine efforts to develop effective proposals to reduce gun violence (Chapman, 2020).
References
Barnhizer, D., & Barnhizer, D. D. (2016, March 8). Gun Control Hysteria. Ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2744879
Chapman, D. (2019). Firearms Chimera: The Counter Productive Campaign to Ban the AR-15 Rifle. SSRN Electronic Journal, 8(1). https://doi.org/10.2139/ssrn.3466567
Doherty, B. (2023, February 8). Biden’s proposed assault weapon ban is unconstitutional, unlikely, and ineffectual. Reason.com. https://reason.com/2023/02/08/bidens-proposed-assault-weapon-ban-is-unconstitutional-unlikely-and-ineffectual/
E. Gregory Wallace. (2020). “Assault Weapon” Lethality. SSRN Electronic Journal, 88(1). https://ssrn.com/abstract=3625076
Eger, C. (2020, November 17). Data: US has 434 Million Guns, 20M ARs, 150M Mags : Guns.com. https://www.guns.com/news/2020/11/17/data-us-has-434-million-guns-20m-ars-150m-mags
English, W. (2022, May 13). 2021 National Firearms Survey: Updated Analysis Including Types of Firearms Owned. Papers.ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4109494
Farago, R. (2016, August 21). News Flash! People are Scared of Black Rifles - The Truth About Guns. The Truth about Guns. https://www.thetruthaboutguns.com/news-flash-people-scared-black-rifles/
Halbrook, S. (2016). Reality Check: The “Assault Weapon” Fantasy and Second Amendment Jurisprudence. https://stephenhalbrook.com/wp-content/uploads/2024/05/Reality-Check.pdf
Halbrook, S. (2021). Banning Americas Rifle: An Assault on the Second Amendment? - Articles - UW-Madison Libraries. Wisc.edu; Federalist Society Review. https://search.library.wisc.edu/article/cdi_gale_infotracgeneralonefile_A795813977
Jacobs, J. B. (2015). Why Ban “Assault Weapons”?. Cardozo Law Review, 37(1). https://ssrn.com/abstract=2632677
Koper, C. S., & Roth, J. A. (2004). The Impact of the 1994 Federal Assault Weapon Ban on Gun Violence Outcomes: An Assessment of Multiple Outcome Measures and Some Lessons for Policy Evaluation. Journal of Quantitative Criminology, 17(1), 33–74. https://doi.org/10.1023/a:1007522431219
Lund, N. (2017). Fourth Circuit Shootout: “Assault Weapons” and the Second Amendment. SSRN Electronic Journal, 24(5). https://ssrn.com/abstract=3029650
Prohibit Assault Weapons. (n.d.). Everytown Research & Policy; Everytown for Gun Safety. Retrieved September 24, 2024, from https://everytownresearch.org/solution/assault-weapon-ban/
Sugarman, J. (2015, July 13). Assault Weapons and Accessories in America. Violence Policy Center. https://vpc.org/publications/assault-weapons-and-accessories-in-america/
Sullum, J. (2022, July 14). This Lawsuit Says a Recent SCOTUS Decision Makes It Clear That “Assault Weapon” Bans Are Unconstitutional. Reason.com. https://reason.com/2022/07/14/this-lawsuit-says-a-recent-scotus-decision-makes-it-clear-that-assault-weapon-bans-are-unconstitutional/
Thomas, C. (2000, June 28). Stenberg v. Carhart, 530 U.S. 914 (2000). Justia Law. https://supreme.justia.com/cases/federal/us/530/914/
Wallace, E. G. (2018). “Assault Weapon” Myths. SSRN Electronic Journal, 43. https://ssrn.com/abstract=3269670
Wallace, E. G. (2020, June 11). “Assault Weapon” Lethality. Ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3625076