What are“Assault” Weapons
June 2009

Liberals cannot let go of their fascination with, and fear (real or feigned) of, “assault weapons.”  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. Liberal Democrats have repeatedly introduced legislation to restore the ban.  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 are quiet about any imagined public benefit to the American people as a result of the ban. 

Not all liberals, however, have been silent.  The Violence Policy Center (VPC) 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.”  This is significant because the VPC was the source for the “assault weapon” push in the first place.   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.  He reasoned that it would be easy to frighten the public over such guns, and it would be possible give the public the sly hint that these are actually machine guns. 

After six years, the plan paid off.  After passing the Senate months earlier, it passed the House of Representatives by two votes.  The enrolled Bill was presented to Clinton and he signed it into law in September of 1994, just six weeks before the Congressional elections.  The passage of the ban played a big role in the elections.  The Democrats were crushed.  Even the Speaker of the House, Tom Foley, was defeated for re-election.  Surely they had known that they were going to pay a heavy price for this vote.  Why were they willing to pay such a price to enact a law which, in their own words, was easily evaded by minor changes in the appearance of the firearms in question?

A partial answer to that question can be found in the advertising which the antigun liberals used in their campaign to ban "assault weapons."  For example, there was 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.  Throughout the campaign for federal legislation, and in various state and local jurisdictions in which Bills pertaining to “assault weapons”  had been introduced, the focus was not only on the lurid tales of the (imaginary) dangers posed by the firearms, but on the fact that the NRA opposed all such legislation.  In the context, there was always an attempt to depict NRA members, too, as dangerous. Why?

Remember that the “assault weapon” campaign was, and is, based upon fraudulently presenting, to the public, bizarre tales intended to frighten people and to hint that these are really machine guns, not semiautomatics.  But there are the hint that “assault weapons” have characteristics which make them unacceptably dangerous.  Since the antigun crowd cannot identify those characteristics, they need to deflect public attention to gun owners themselves.  This would prevent the public from looking too closely at the antigun claims.  If they are so afraid of the arguments against the “assault weapon” campaign, perhaps it would be worth our while to examine the law which so many seek to reinstate.

If “assault weapons” are believed to pose an unacceptable risk to public safety, then those who hold this view should be able to define the functional characteristics which render them objectionable.  But, if we take a close look at the law which they want to reinstate, we don’t find support for their claims.

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 enumerated list of banned firearms, 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.  So why did they choose the Steyr to be put on the list?  Stephen Higgins, former director of ATF, testifying in Congress, in response to a direct question stated that to his knowledge the Steyr AUG had never been used in a violent crime in the United States.  This gives some credence to Hardy's claim that the enumerated list was created, not by consulting crime statistics, but by looking at pictures of guns and deciding which ones looked scary.

The enumerated list contains another error.  Someone had apparently pointed out that if you list certain specific firearms to be banned you have to also make sure that nobody copied these firearms.  Accordingly, the preface to the enumerated 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 in the enumerated list 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 used to interpret statutes require that every word in a statute, if possible, be given explicit meaning. Thus, 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 fact of the inclusion of the Galil on the enumerated list, separately from the Kalashnikov, would be construed to mean that the Galil is neither a copy or a duplicate of a Kalashnikov. However, as most people familiar with firearms are aware, 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.

But then there is the phrase "in any caliber."  20 mm is a caliber.  So is 37 mm.  So, for that matter, is 155 mm.  One of the firearms on the enumerated list is a handgun, the TEC9.  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.  That means that an artillery piece, on wheels, might still qualify as a copy or duplicate of the TEC9.  In other words, the definition includes, at the same time, firearms which bear no resemblance to each other in any respect, but excludes firearms with even tiny differences.  Or to say it a different way, there is no possible logical way in which this definition can be applied.

We suspected that we were not the only ones to have reached this conclusion.  During the term of the law I was an attorney in the legal office of the NRA.  At one point I received a call from a federal defender in a large city.  He had a client who had robbed a bank using a MAADI rifle.  The US attorney, eager to get an enhanced sentence, put an ATF agent on the witness stand where the agent said he had compared every single operational part of the MAADI To a NORINCO Kalashnikov.  In every respect, the two firearms were identical.  The defense attorney asked me what to do.

The NRA had challenged the assault weapon ban as being void for vagueness.  We lost on standing when the government produce an affidavit in which it was asserted that if we had any question whatsoever as to what the law means or how it was to be applied the appropriate authority to answer the question, and the only place where such questions could be answered, was the Technical Branch of ATF.  I provided defense counsel with a copy of the document and told him to present it to the judge and move to have the testimony of the ATF agent stricken because the same US attorney's office which presented the testimony of the agent had earlier asserted that only the Technical Branch of the ATF could answer such questions.  As we expected, the Technical Branch pointed out that the MAADI rifle did not fit any statutory definition of "semiautomatic assault weapon."

Of course, anyone who knows anything about firearms knows that a MAADI is a Kalashnikov.  But then, we didn't write the law.  We tried to tell them it was a stupid law and I can't think of a better way for them to have found out than to have lost such an obvious case for an enhanced sentence.

The statute gives a second definition of "semiautomatic assault weapon" which has no relation, either functionally or otherwise, with the first definition.  The second definition 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, of course, would be beside the point, since a bayonet mount, if it were the only one of the banned features on rifle, would be legal.  The same would be true if the rifle had a grenade launcher. A logical conclusion that a rational person might reach is that the authors of this legislation somehow believed that the operation of a folding or telescoping stock, when amplified by a pistol grip, made a rifle unacceptably lethal.  The fact is that 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.

Another conclusion one might reach is that the combination of the banned features was merely an arbitrary and capricious definition of "semiautomatic assault weapon."  As I suggested earlier the primary purpose of the law was not to protect public safety, but to demonize a class of people.  Your guns were not the target, you were.  In the eyes of the liberal elite, rural people who own guns and drive pickups are a tribe of unwashed backwoodsmen.  They hold us in contempt, but know nothing about us.  As a result, we scare the hell out of them.  Think of the recent report by the Department of Homeland Security on "right wing extremists" in which it was suggested that one of the greatest terrorist dangers America faces is returning combat veterans.

The attitude of liberals toward rural America was perfectly and succinctly expressed by the Washington Post’s Tony Kornheiser.  On his radio program, after the people of Montana instituted an unlimited speed limit on its interstate highways, Kornheiser said "the people in Montana make the people in West Virginia look like Lincoln Center on opening night."   The “assault weapon” ban was passed to give city slickers a feeling of satisfaction for having put  it to the hicks, entertainment infinitely more pleasurable than pretending to enjoy listening to insufferable modern music at the Lincoln Center.

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 and that they fear having the cold light of reason shine on their position.  In fact, this is true of all liberal positions.  Look at the liberals who claim that “the time for debate about global warming is over.”  Liberals cannot argue because they base their positions on emotion, not reason.  We need facts to fight them.

Now that we know they're going to try to bring back the assault weapon ban 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?  Is there a functional relationship between these items which makes firearms more accurate or fire more rapidly?

Many of you will have other questions which a member of Congress could ask in order to 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 in two ways --  we remind our opponents that we are politically active, and we gather ammunition to show that their lurid claims of the dangers of an imaginary class of firearms are based on moonbeams, not reality.  Our opponents have thrown out the “assault weapon” challenge.  Now it's up to you. 

 
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.