Editor’s Note: A guest article from John Hertig.
The news these days is full of the debate about assault rifles. But what exactly are we talking about?
Many people claim that an “AR-15” is an “assault rifle“. And they are about “half” correct, because there are three possible definitions of assault rifle: the technical one, the legal one and the functional one. They also think that “AR” stands for “assault rifle” or “automatic rifle”, but they are completely wrong on that. It stands for “Armalite Rifle” after the company which invented them.
– Technically, an “assault rifle” is defined as “an intermediate-range, magazine-fed military weapon designed to be fired with two hands from the shoulder that can be set for automatic or semiautomatic fire”. Those who don’t know what they are talking about and those who want to get rid of guns and don’t mind lying to do so, have extended this to include “or semi-automatic versions of these”. Everyone agrees that the M-16 and the AK-47 are assault rifles. Some people insist that the AR-15 and the semi-automatic only version of the AK-47 are also “assault rifles”. Note that true (fully automatic) assault rifles are already very highly regulated. None can have been manufactured for civilian use since 1986, which means the limited and dwindling supply of existing registered ones has resulted in ridiculously high prices (up to $60,000). To get one you have to pass an extensive federal background check, pay a $200 transfer tax, and wait for many months. And once you have one, there are restrictions on what you can do with it which do not apply to semi-automatic only firearms.
– Legal definitions are what are specified in laws which specify “assault rifles” instead of the more accurate and politically ineffective “Modern Sporting Rifles” (MSR) or the marginally accurate “assault style rifles”, and vary from Federal to State, and from State to State. Of course, true assault rifles are already covered by the NFA (National Firearms Act of 1934), the GCA (Gun Control Act of 1968) and the FOPA (Firearm Owners Protection Act of 1986), so any law about “assault rifles” only apply to the semi-automatic versions. And these laws sometimes list specific models (such as AR-15 and AK-47) and typically (also) refer to “semi-automatic rifles which can accept a magazine removable without opening the action (or a capacity of over 10 rounds), AND have one or more ‘features’ such as a collapsible or folding stock, a thumbhole stock or pistol grip, a vertical forward grip, a bayonet lug, or a flash hider. In other words, how it LOOKS, not how it works. Under these laws, an AR-15 is an assault rifle, and a Mini-14 (see picture below) is NOT an assault rifle even though it does exactly the same thing; it just looks “less military” (even though it is a shrunken version of the M-14 military rifle).
Note: This is NOT an assault rifle “by definition” though the Editor would gladly take this into any combat situation against any other rifle.
– Functionally, if a person uses a rifle to assault someone, it is an assault rifle. Even if it is a single shot, black powder, muzzle loading rifle which is considered a “curio or relic”, is not regulated and can be ordered through the mail.
So an AR-15 is not an assault rifle by the original, unpoliticized technical definition, is usually an assault rifle by the legal definition, and is very seldom an assault rifle by the functional definition. Oh, and guess what: no matter how any law defines “assault rifles”, there will be a way around it. So then all semi-autos will need to be addressed. And after they are no longer a factor, we will find that lever action rifles and pump action rifles and revolver rifles are pretty quick firing as well. Step by step the people will be pushed further and further into being prey for anyone who wishes to subjugate them. Just keep this in mind while we continue to discuss “assault rifles”.
Should Assault Rifles be “Banned”?
Whenever an AR-15 or other MSR is used by some fame seeking psychopath, there is a call to “ban assault rifles”.
At first glance, it would seem that the Second Amendment of the United States Constitution would prevent this. “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”. This was written after the United States had just rebelled against a tyrannical government to achieve freedom from the same, and was primarily intended to make sure that as a people, we would never be in a condition where we could not rebel against tyranny.
Thus, let’s dissect this. It starts with a “justification” clause (the reason for the amendment) and ends with an “effect” clause (the purpose of the amendment). The justification was to “ensure the security of a free (from tyranny) State (the political entity covered by the document, that is, the new United States)” And how were they going to ensure this security? With a “well regulated Militia”. In those days, the militia was considered to be every able bodied white man between the ages of 18 and 45. Under normal conditions, these people would not be actively IN the militia, but they could be called together and trained and lead (thus well regulated) if the conditions warranted. And the only way to practically do that was if “all” of them had their own personal arms and experience in their use. This means arms which are at or near to the level of sophistication of those weapons likely to be used by the tyrant’s forces. Today, the militia would include all races and probably at least some women.
Thus the “effect” clause is the most important part of the Amendment. And the effect is a “right” and the group to whom that right applies. The right is “to keep and bear Arms”, with Arms meaning weapons suitable for defense against a tyrant or tyrannical government. Otherwise, the purpose of the amendment is without value. The target group is “the people”, that is citizens of the United States. That has been massaged to be interpreted as the subset of those people who have not proven themselves to be a danger if in possession of firearms, including released criminals and the mentally unbalanced. If the justice system really did a reasonably effective job of rehabilitating criminals, than it seems obvious that after “paying their debt to society”, criminals would be able to restore this right, particularly those whose criminal acts were non-violent. Under our current justice system, current restrictions on this restoration of rights can have a case about it made both ways. As for the mentally unbalanced, they are sick and should be cured before they have ANY right which will affect the rest of society. But without ANY valid indication of danger from a person, any restriction of gun rights appears to be prohibited (“shall not be infringed”; that is limited, undermined or encroached on).
“Arms” have always been interpreted as “personal” weapons. I don’t imagine anyone, including the founding fathers, thought that squad or higher level weaponry (cannons in their day) would be either appropriate for individuals, or likely to be effective if used by an individual during a rebellion against tyranny. In 1934, the violence of prohibition resulted in the first real attack on the Second Amendment, when they decided that machine guns, sawed off shotguns and rifles, and silencers were “not appropriate for civilians”. They did not prohibit them, just regulated the heck out of them and added a ruinous tax, about half the price of a Model T car for each one transferred. They wanted to include handguns in the law, but in the end, left them out. Eventually, this law (NFA) was “gutted” for being unconstitutional. Not for violating the Second Amendment, oddly enough, but the Fifth Amendment against self incrimination. Since the weapons specified in the NFA had to be registered, and the act of registering was sometimes admission of a crime, in 1968 a new law was passed which eliminated the need for “registration”. In fact, there was no longer ANY way to register an unregistered NFA weapon after the effective date of the GCA, making all of them which were not registered by that date, illegal. The new law, which was approved by the court as being Constitutional, was the requirement for every transfer to go through a special class of dealers, ensuring that the new owner would be known to, and vetted by, the BATFE, the governmental agency tasked with administering federal firearms law. To eliminate any question of self-incrimination, it was prohibited from using the information from the transfer for any criminal indictment. With the passage of this law, any NFA weapon found in the possession of any person other than the one it was last transferred to was considered “unregistered” and resulted in $250,000 in fines and 10 years in jail for that person.
So back to the original question. Again, we need to look at the word, “banned”, being used. Technically, it means “prohibited, not allowed”. This would make possession by law abiding, non-crazy people illegal, which would seem to be an easily shown violation of the Second Amendment. Even if it could get over the hump of apparently violating the Constitution, many of these “assault rifles” are fairly high in price; often over $1000 and sometimes over $2000 or even $3000. When you add in accessories which would become useless without the rifle, you are talking about a potentially huge hit to a person’s net worth. Not to mention dealers and manufacturers and accessory makers and importers; an entire industry. Taking someone’s (previously) legally owned property without just compensation would seem to be yet another Constitutional problem. A way around this might be to “buy” them, but then you get into a mess with valuation, which is not just market value prior to the new law. And the potential for fraud would be extreme. There would be some people who just would not give them up, giving a healthy boost to the percentage of our population who would be criminals.
So it seems that banning assault rifles according to the actual meaning of the word “ban” would cause more problems than it could possibly solve.
So What Other Options are There?
There actually WAS a federal “ban” implemented. Of course, it was not REALLY a “ban”, because every existing weapon which fell under the ban could continue to be owned and used and transferred. The law specified “no more can be made or imported except for use by the government”. What was the impact? On use of these weapons in criminal acts, not much, since there were so many of them and they were not used criminally that often. Because of the complete stop to any more being produced or available, the price went up. The law had a “sunset” clause in it, and when the specified time period had elapsed (2004), the law was not renewed.
So one option would be a similar law which “grandfathers” in existing “assault rifles”. This would probably be even less effective than the last one, since the popularity of these rifles has exploded and there would be a huge supply still available. I’m sure the politicians and those who hate guns (or at least gun ownership; they don’t seem to mind hiring armed guards) will celebrate this “ban” even though once again, they misuse the term and have provided no significant effect on violence.
Another option would be to add “assault rifles” to the NFA list. I imagine the BATFE would have to get a lot bigger to handle this. And any minor reduction in violent crime would be wildly overshadowed by the loss of effectiveness of a militia called up without most of the people having any exposure to about the most effective personal weapon. Also it would be a major shift in the BATFE mission, since currently they administer the NFA law; and a new law covering “assault rifles” would need to be passed and put in their mission.
Controlling People Rather than Things
Frankly, the “best” option would be to do nothing about “assault rifles”, because despite all the rhetoric, the GUN has nothing to do with these acts of violence. If we could just look at things clearly, we could see where really effective measures could reduce these horrible acts. First of all, quit making “gun-free zones” which are highly attractive to psychos because they may be crazy, but they are not stupid enough to ignore that if they have the only gun, they can’t be stopped. Next, I’d guess at least half these nut-jobs do it for the fame or to “make a statement”, and if it was illegal to publish their name or picture or any information about them except in the most general, non-identifiable and derogatory terms, the number of these incidents would plummet.
But although the guns are “innocent” of these events, gun OWNERS are not without some blame, by leaving guns where psychos can get them or by selling them to those who should not have them. It is not a huge problem, but it does happen on occasion. Background checks on commercial sales are fairly useful, and the current methodology is moderately effective. But it is only as effective as the databases which are used, and these need work. There are too many cases where people who should be in the database are not, and some cases where people who should not be in the database are (leading to false rejection). So, “fixing” the databases should be a high priority (this does not mean adding people who are not actually a danger, such as people who have someone else do their income taxes). There are those who claim that private sales not requiring a background check is a “loophole” to the law. As usual, these people misuse a term for their own benefit. A “loophole” is an UNINTENTIONAL misuse of a law. The exception of background checks on private sales is deliberately allowed in the law, because legal ownership of something includes the ability to sell it when it is no longer wanted or if money is suddenly needed. It is not currently possible for a private seller to do a background check, and involving a FFL is difficult and often much too expensive. Also, the checks COULD be used for an underground registration system, and that would be a problem someday (universal registration always has led to confiscation).
That being said, I would support an “instant universal background check” to include private sales IF AND ONLY IF, 1) it could be done by a private individual for free or small fee (preferably usable as a tax credit; we would be doing this for the country, not ourselves), 2) the background check was strictly on the person attempting to buy and had no indication whatsoever what gun was being purchased, 3) that any approved buyers would have their records deleted after 30 days or other reasonable time period, and 4) that any agency which maintained any records after that time period would have every employee of that agency fined, except any employee who reported the transgression would be rewarded. Any elected official which requested or required the agency do this, would be removed from office.
Alternatively, do away with background checks and issue a “good guy” card to those who undergo a background check, top level safety training and basic firearm operation training. This should be affordable for all, and would be confiscated if the person was shown to be dangerous. Then any transfer would require inspection of a current card before proceeding. Or have both systems, with the background check done for those who don’t have the card and the card used instead of the background check (like a concealed carry permit is today) for those who have it.
Basically gun control has limited effectiveness in reducing violence, because the gun is merely a tool of a violent person. The only people who are affected by gun control laws, are those who obey the law, and don’t commit acts of violence. And the effects on those law abiding people can be quite onerous. Any law passed will only create more victims (who no longer can be armed) and more criminals (formerly law abiding people who rebel against the new law). When the last gun is removed from civilian hands, violence will not cease; violent people will still have knives and baseball bats and hammers and fists. And they have ready access to items which can cause much more damage than guns.