Politics & Policy

New Anti-Gun Strategies

An AR-15-style rifle in a Tinley Park., Ill., gun store. (Scott Olson/Getty Images)
“Assault weapon” bans have proved very unpopular — but the anti-gun lobbies aren’t giving up entirely.

To mark the tenth anniversary of the expiration of the federal ban on so-called assault weapons, the anti-gun lobbies made a surprising announcement: They are not attempting to push for a new ban. This is a smart decision, because there is more than one way to shrink the American gun culture. The “assault weapon” prohibition campaign of the last quarter-century was the most successful effort in American history to ban large numbers of guns. But, ultimately, it proved more harmful than helpful to the politicians who supported it and the groups that promoted it.

No president ever invested so much political capital in gun control as Bill Clinton did in order to drag the federal “assault weapon” ban over the finish line in 1994. It passed the House by a single vote. One of the trade-offs to get the prohibition bill passed was a ten-year sunset provision, plus funding for studies to analyze the law’s effects. There were several interim reports, plus a final report issued in early 2004 by Professor Christopher Koper, then of the University of Pennsylvania. The report concluded: “there has been no discernible reduction in the lethality and injuriousness of gun violence, based on indicators like the percentage of gun crimes resulting in death or the share of gunfire incidents resulting in injury.”

Not surprisingly, when the sunset date arrived in September 2004, the law vanished, with much less public controversy than had accompanied its enactment.

Now, on the tenth anniversary of the sunset, the anti-gun lobbies announced their acceptance that this particular sun may never rise again. The announcement came in the form of a report issued by the Center for American Progress, the dominant think tank of the left wing of the Democratic establishment. The report proposed various new anti-gun laws, including special licensing for “assault weapons,” but did not urge prohibition of those firearms.

Last Friday, the news website ProPublica posted an article titled “Why Gun Control Groups Have Moved Away from an Assault Weapons Ban.” The story quoted officials in the two major anti-gun groups (the Bloomberg group and the Brady Campaign), who said they still wanted to ban the guns, but were not currently pushing the ban as a priority.

The New York Times, the Wall Street Journal, and ProPublica published follow-up articles, which told a consistent story: Most firearms homicides are perpetrated by a small number of highly violent young males, so the most sensible policy is to concentrate on disarming or incarcerating them. As for the guns themselves, “assault weapons” are very rarely used in crime. And, contrary to popular belief, the definition of “assault weapon” in the 1994 ban was not based on the weapon’s rate of fire or firepower, but instead on external features — for example, whether the gun has an adjustable stock. An adjustable stock makes it possible for the user to lengthen or shorten the stock to fit his or her frame. (A person who is 5′ 3″ will shorten the stock, and a person who is 6′ 8″ will lengthen it.) So, to comply with the ban, manufacturers just introduced new models that omitted the external features.

This is all true, but it’s not new. The quarter-century campaign to outlaw “assault weapons” was always contrary to the facts.

In 1988, the gun-prohibition strategist Josh Sugarmann of the Violence Policy Center analyzed why gun-control advocates should pivot away from handguns, a topic on which the media had grown bored. “Assault weapons” enjoyed the advantage of novelty. Moreover, as he explained: “The semi-automatic weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic 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.”

He was exactly right. To paraphrase Abraham Lincoln’s observation, you can fool most of the people some of the time.

Starting with the President of the United States.

Although elected on a platform opposed to gun bans, President George H. W. Bush in 1989 announced that he was against what he called “automated attack weapons.” Bush’s “war on drugs” was at its zenith, and the Brady Campaign (then known as Handgun Control, Inc.) told everyone who would listen that “assault weapons” were the “weapon of choice” of drug dealers and violent criminals (even though, then as now, those particular guns constituted 1 to 2 percent of crime guns seized by the police).

“Drug Czar” William Bennett duly announced a federal ban on the import of “assault weapons.” California enacted a ban that same year, followed within the next few years by New Jersey, Maryland, Hawaii, New York, Massachusetts, and some individual cities.

The definitions used in these bans varied widely, but the core principle was the prohibition of as many firearms as was politically feasible. Hawaii outlawed only a few models of handguns, while New Jersey even banned some air guns.

Federally, the prohibition lobbies started with a bill that would give the Bureau of Alcohol, Tobacco, and Firearms the administrative authority to ban any gun that it labeled an “assault weapon.” That idea didn’t get very far, so the lobbies retreated to listing the names of certain guns, plus a generic definition based on whether a gun had various features.

This demonstrated the essential incoherence of the ban. If a named gun is unusually dangerous, then it should be possible to describe the danger based on objective characteristics. But when characteristics were listed, they had nothing to do with rate of fire or firepower. Which was understandable, since “assault weapons” fire at the same rate as many other common guns, and they have considerably less firepower than many common hunting rifles, which are designed for big game.

Instead, the list of supposedly illicit characteristics included things such as whether a rifle had a lug for attachment of a bayonet. As if drive-by bayonetings were America’s top social problem.

To finally get the ban through Congress in 1994, the prohibition lobbies had to carve out an express exemption for the Ruger Mini-14 and Mini-30 rifles. These rifles, introduced in 1973, had immediately become popular models for law-abiding American gun owners. There was too much political resistance to a ban on them.

The exemption made political sense, but not logical sense. There was no plausible argument that these rifles were significantly different from the banned rifles manufactured by Colt or by various small American and foreign companies.

Washington Post columnist Charles Krauthammer wrote that the “assault weapon” ban was “purely symbolic. . . . Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation” (April 5, 1996).

For the gun-prohibition lobbies, it was the best of times. Since the late 1960s, they and their predecessors had accomplished very little on gun bans; all they had to show for their efforts were handgun bans in D.C., Chicago, and some Chicago suburbs. Now, they were banning a wide range of guns; even with the compromises, the 1994 federal ban outlawed about 200 models of firearms.

American gun owners basically had the same idea as Krauthammer. After Czar Bennett’s import ban, they mobilized under what the Second Amendment Foundation calls the “NATO doctrine”: an attack on one form of gun ownership is an attack on all. This is one of the most important reasons why the American Second Amendment movement has been so politically effective for most of the last nine decades: American gun owners defend the right to own types of guns that they do not personally own and may have no interest in owning.

This is very different from the behavior of gun owners in some other nations. For example, in the United Kingdom, shotgun owners have paid little attention to the rights of rifle owners, and neither ever did much for handgun owners. So, today, handguns are gone, while long guns are legally owned by less than 5 percent of the population.

The January 2010 special Senate election in Massachusetts is remembered for having sent a strong early warning about the political dangers of Obamacare. A similar sign about gun bans was the 1991 elections for the New Jersey state legislature. Party control of the Assembly and the Senate flipped to Republicans; tax increases were the most important issue, but the state’s new “assault weapon” ban was second.

Governor James Florio used his veto to defeat an attempt to repeal the ban. But he lost his reelection bid in 1993. President Clinton praised Florio for giving up his governorship to save the “assault weapon” ban.

The gun issue in general, and “assault weapon” bans in particular, played a very large role in the Democratic loss of the U.S. Senate and House in 1994. Democrats had controlled the latter since 1955.

Banning guns is a great way to drive pro-gun voters to the polls, and the consequences in state legislative and gubernatorial races in 1994 were enormous. As a direct result, by the end of 1995, the majority of the U.S. population lived in states where there was a fair and objective procedure by which law-abiding adults could obtain a permit to carry a concealed handgun, after passing a fingerprint-based background check and a course of safety training.

Al Gore and John Kerry lost very close presidential elections in 2000 and 2004, elections they could have won if the National Rifle Association and National Shooting Sports Foundation had not reminded voters about their records on gun bans.

The 2004 election cost the Left the opportunity to regain control of the Supreme Court. One consequence of that was the 2008 District of Columbia v. Heller decision, affirming that the Second Amendment protects the individual’s right to own firearms for self-defense and other lawful purposes. Then the 2010 McDonald v. Chicago case made the Second Amendment enforceable against state and local governments.

The “assault weapon” issue had proved to be a political catastrophe. For the anti-gun lobbies, it had created in the public mind an intrinsic benefit of banning some guns, and it had set the precedent for banning more; but the price was the many pro-gun laws enacted and anti-gun laws repealed because of the electoral reaction against gun bans.

Meanwhile, the manufacturers had duly removed bayonet lugs from their guns, and were selling non-assault weapons to satisfy ever-increasing demand among law-enforcement agencies and private citizens. Today, the many different models of the AR-15 rifle are by far the most popular law-enforcement rifles, and indeed the most popular rifles in American history, with about 5 million owned by American citizens apart from the military (out of a total U.S. firearms stock of something over 300 million).

From 2007 to 2011, the anti-gun lobbies put their greatest efforts into issues other than “assault weapons.” Yet as soon as the Newtown murders of December 2012 opened up the gun-control window, the same lobbies, with the backing of the Obama White House, put “assault weapons” at the top of their agenda. They succeeded in enacting draconian expansions of older bans in Connecticut, Maryland, and New York.

They also poisoned President Obama’s second term. Reelected presidents often have a window for one last major legislative accomplishment. President Reagan used his for bipartisan tax reform. President George W. Bush attempted Social Security reform, although he failed. President Obama seized on gun control, and by making gun bans the centerpiece of his campaign, he guaranteed his failure.

So the recent pivot of the anti-gun lobbies away from “assault weapons” is an eminently sensible tactical correction — and, from the perspective of many Democratic strategists, a long-overdue one.

There’s more than one way to skin a cat, if you think that there are way too many American guns and gun owners.

“Universal background checks” poll well. Background checks on personal sales of firearms (i.e., friend to friend, not store to consumer) could be set up to be efficient, easy to comply with, and protective of individual privacy.

But Mr. Bloomberg is pushing for something very different. His Initiative 594, on the November ballot in Washington State, purports to be merely “universal background checks,” but it would criminalize many of the ordinary activities of gun ownership. It isn’t just about private sales. It is about private loans, even those that last just a few minutes.

The bill makes it illegal to allow a visiting friend to hold and examine your new gun, while at your house and in your continuous presence. More precisely, the bill requires that you and your friend first take the gun to a gun store. The dealer will take the gun into his custody and fill out all the same paperwork he would if he were selling you a gun out of his own inventory. You will pay whatever fee the dealer charges.

Then your friend can receive the gun from the dealer. You can drive home, and your friend can look at the gun for a while, or even shoot it at some cans on your property. After he’s done, and ready to hand the gun back to you, the two of you must return to the gun store. The store will process the return of your gun exactly the same way as it did the original “transfer.” All the same paperwork again, and another fee.

The Washington State Law Enforcement Firearms Instructor Association (WSLEFIA) states: “I-594 is a law so broadly written that it clearly is designed to make criminals of all recreational shooters and most law enforcement officers.”

It still may be possible to fool most of the people some of the time.

Dave Kopel is an adjunct professor of advanced constitutional law at Denver University’s Sturm College of Law and research director at the Independence Institute in Denver.



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