I served as a counsel to the Senate Judiciary Committee, attached to a U.S. senator who was one of the original co-sponsors of the Federal Assault Weapons Ban. I worked in the Senate when the act was up for renewal. The law was not re-enacted. With the recent media coverage of several incidents of tragic firearms violence, questions of gun control have risen again. Answers are complex.
The positions of those who oppose any restrictions and those who are against civilian gun ownership are relatively simple. The former tend to blanket themselves in the Second Amendment, notwithstanding that no court has said that the federal or state governments cannot restrict some forms of ownership — such as the current prohibition on general civilian ownership of machine guns. The latter face perhaps an even bigger hurdle: the explicit language of the Constitution coupled with the U.S. Supreme Court’s two recent rulings cementing individuals’ gun-ownership rights.
For those in between, the discussion is difficult and often clouded by misinformation. Take, for example, the guns and accoutrements used in the vicious and cowardly Aurora, Colo., slaughtering. The assailant used three different guns: an AR-15, a pump-action shotgun and a Glock .40-caliber handgun. Let’s look at each one and the legal issues that surround them.
The AR-15 is the civilian version of the well-known military M-16. The most important distinction between the two is that it is not automatic — what some would slightly inaccurately call a machine gun. That is, it shoots like many other rifles used for hunting and target fire: Each time the user pulls the trigger, one — and only one — bullet is shot. This gun, under the now-expired assault-weapons ban, was illegal — for sure. However, its virtual copy, the “matchpoint,” was not. Also, under the assault-weapons ban, owners of any guns on the prohibited list who purchased their guns prior to the law’s enactment could continue to own their guns and, indeed, sell them. (And they did so during the ban at a nice premium.) In other words, the ban was not a ban, but a prohibition on the manufacture and sale of new versions of guns on the list.
Relatedly, under the ban, new matchpoints were sold with the low-capacity 10-round magazines. However, not only were preban high-capacity clips readily available and perfectly legal — new high-capacity magazines (often made in China or Eastern Europe) readily found their way into the United States. The assailant in Colorado used a now-legal superhigh-capacity magazine — a 100-round drum. These devices, which look like shallow oil cans (picture the iconic “tommy-gun” from prohibition days) are actually less deadly than the most lethal clips — ordinary high-capacity magazines (in, say, the 30-round range) — because they almost invariably jam, as did the Colorado assailant’s.
The next gun, the Remington 870, is the archetype of modern shotguns. It is used by law enforcement and civilians alike. While I have not yet seen the tragic ballistics reports from Colorado, this gun is the most deadly of the three used in the type of context in which it was wielded. Remember, of course, that all guns are designed to be deadly. So, this relative description is not normative — one way or the other. Its deadly nature derives from the fact that shotguns are designed to shoot shells containing “pellets.” However, each of these so-called pellets can be roughly the equivalent of handgun bullet, and each shell can hold up to nine of these bullets. Thus, with one trigger pull, a shooter can unload nine handgun bullets all at once. That’s faster than any legal rifle — and prohibited machine gun, as well. These guns were not illegal under the assault-weapons ban, nor are they now.
Finally, the Glock .40-caliber handgun is a mainstay among law enforcement agencies and civilians alike. This gun, too, has always been legal, although many states restrict handguns generally in some way less than a total ban. Under the assault-weapons ban, this gun could only be sold new with a low-capacity magazine (10 rounds), but, again, preban high-capacity magazines, if available, were legal. Now that the assault-weapons ban has expired, they typically are sold with magazines holding 17 rounds. In addition, longer magazines, which extend past the body of the weapon, are available — although at some point they tend to malfunction similarly to, but less dramatically than, drum magazines.
The difficulty with this issue is that most gun-restriction laws simply shift purchasers to different lethal weapons — with the most notable exception of limiting magazine size, which does affect overall lethality. Many gun-control advocates point to the fact that fewer weapons characterized as assault weapons were used in crimes during the assault-weapons ban. This fact alone, however, is not particularly informative.
Take automobiles as an example. Unlike guns, cars are not designed to be deadly — needless to say — but they are involved in the death of almost as many Americans in one year than were killed in the whole Vietnam War. If we were to prohibit the manufacture and sale of blue Honda Accords (an excellent vehicle, no doubt), then there would almost inevitably be a reduction in the number of deaths caused by blue Accords. The relevant question, however, is whether automobile deaths overall would go down — which under this limited example, they seemingly would not.
By analogy, the relevant question regarding gun-control legislation is whether it makes people safer or just shifts the allocation of resources within a marketplace.
Robert Steinbuch is a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law.