My comments to Senate Judiciary
My comments (pdf) for tomorrow's Senate Judiciary Committee, Subcommittee on the Constitution hearings on gun control and the Second Amendment.
Further update: my spam blocker has blocked several comments, so I'll put them in the extended entry below.
Still further update: I think Heller uses "in common use" as a sort of entry test: the 2A protects such guns, so if gun meets that test, then you assess the validity of the regulation with conventional standards of scrutiny. I see "in common use" as flawed even there. (1) An armed banned at the outset will never get into common use, no matter how flawed the ban might be. (2) It comes from Miller, which was a militia-centric case. To the extent it has any discernable holding, Miller suggest that guns not suited for militia/military use are not protected. Heller uses an entirely different approach. (3) At that, Miller does not treat "common use" as a true test. It says militia were expected to appear bearing arms that were in common use. That's more a historical statement than a test. As a historical statement it is true. As a test, there's no explanation of just why that would matter.
David - Came here via Instapundit link.
Excellent letter and I hope it gets its due consideration.
I would take issue with only one aspect of it, the origins of "assault weapon" in the legislative lexicon. While you may be correct that the VPC popularized the concept of the evil and scary "assault weapon", the idea was first floated in California circa-1988/89.
If you look up the Roberti-Roos Assault Weapons Control Act of 1989, you will find the first legislative use of the term that I have been able to find. The passage of this law (by a handful of votes in Sacramento) came only after a horrific school shooting in Stockton CA.
This link will provide some context and background:
The link below is even more instructive as it is a recollection of one of the LEOs involved in the drafting of the legislation. You will not that it was drafted by Democratic Sacramento staffers with little to no knowledge of guns but ideas on how to make the law sound scary and effective.
Of particular note is the treatment of magazine capacity which back then was solely focused on AK/AR style rifles and "machine pistols" like the Intertec and MACs. NO MENTION of traditional semi-auto handguns when using the 10-round magazine threshold. If they were concerned about traditional pistols then, they would likely have included the Browning Hi-Power and others on the named weapon list - they did not.
"any true “assault rifle” is capable of full automatic fire."
I don't think that's accurate. Many M-16s and M-4s have only options for single fire and 3 round fire. No full automatic choice. But I'd call them assault rifles. You might want to remove the word 'full'.
Pretty good, though I'd also note that the advent of separate pistol grips was also motivated by modern semiautomatic rifle designs that located the recoil spring and bolt follower in the buttstock to shorten the rifle's overall length, making the traditional in-line pistol grip and its required indentation for the thumb incompatible.
I've also been thinking a bit about the magazine size restrictions. These restrictions would have marginal effect on a determined would-be mass shooter, since he could prepare in advance by carrying multiple smaller magazines on his belt, in sports vest pockets, etc. and train himself to exchange them quickly. The civilian defender against an attack, on the other hand, is not going to be so attired and likely will have only what ammo is with his defensive firearm when he grabs it. Magazine size restrictions, therefore, would disproportionately hinder defense relative to attack, shifting the balance of power towards the criminal.
Steve K writes:
I hear the argument that there is no need for high capacity magazines other than to shoot people. Nonsense. Here in Utah there is a bounty of $50 for every coyote pelt. Coyotes run in packs. If I'm out hunting and I come across a pack of coyotes I want as many rounds as possible before they run off. The AR-15 is a perfect gun for the job.
This is very well written and informative. Hope it has the desired effect.
Posted by: Barbara Grant at February 11, 2013 03:17 PM
You might point out that a while after WWII there was a US Army competition for a new service rifle. Among the entrans were the FAL and the M-14. The M-14 was chosen by the US Military as the worlds deadliest rifle even though it didn't have a pistol grip and the FAL did. They didn't even bother to retrofit or improve the M-14 with a pistol grip because it wouldn't have significantly increased the deadliness of the rifle.
It is also often stated that weapons designed for war don't belong on our streets. But all weapon types were originally designed for war, all the way back to the muskets. Bolt actions are derived from the German Mouser, lever actions from the Civil War, the 1911 and Beretta for the Army. Revolvers were not for hunting.
Hi capacity magazines are needed when there are multiple bad guys and for when you miss frequently, like even cops and military do a whole lot under stress. Untrained shooters need high caps even more than well trained persons. Spree shooters have learned to just carry multiple guns. Before six shot revolvers, pirates just used to carry six single shots. See the photo of Blackbeard on Wikipedia.
Lets start calling them "defense rifles".
Posted by: Critic at February 11, 2013 04:45 PM
A law banning a list of models and cosmetic features with no underlying technical definition can hardly pretend to be a restriction on technical criteria. It is more accurately described as censorship, like banning "baggy pants" and "snap-back hats" as a crime measure. Is there conceivably a 1st Am issue here?
Suppose Bushmaster attempts to introduce an otherwise-legal rifle under the banned model name MOE A-TACS M4 TYPE CARBINE. If that "model" is banned, then Bushmaster cannot market another product under that name, no?
So what is really banned is the name, which incidentally may be copyrighted and have property value.
Aren't there legal problems with that?
Posted by: jheath at February 11, 2013 08:49 PM
Thanks for this, Mr. Hardy. It gets copied for my local legislators.
Posted by: SPQR at February 11, 2013 09:28 PM
You forgot to mention the "Shoulder thing that goes up". But it was a very good read.
Posted by: Joel Stoner at February 12, 2013 10:52 AM
Very well written, so my question(s) become: how many will actually read it and How many will understand it. I meant it is exceeding clear which should confuse them to no end.
Posted by: Rich at February 12, 2013 02:51 PM
Due diligence, you wouldn't want some English-speaker to go after a mouse with one of those.
Posted by: comatus at February 13, 2013 11:41 AM
Comatatus, das ist Wahr.
Although with a 98k an English-speaker could go after a mouse, or a German-speaker could go after a maus, and there wouldn't be much left of the rodent to dispose of.
Posted by: Windy Wilson at February 13, 2013 12:08 PM
An M1a from Springfield, the "National Defense" model? I'd buy one.
Posted by: Windy Wilson at February 13, 2013 12:10 PM
I still don't understand why anyone would choose to use an AR-15 style weapon for these mass shootings. Assuming their intent is to kill large numbers of people, using a pointed .223 projectile traveling at an high velocity is much more likely to pass through a person (and presumable do less damage) then would a 9mm or .45 cal blunt nose or hollow point round. You also have the unwieldiness of swinging a long rifle around vs. a pistol. The standard magazine for a Beretta 92FS is 15 rounds. Wielding a pair of 92FS would seem to be much more deadly and would also preclude the "rush him while he reloads or while it is jammed” scenario. S.P.O.R.T.S. was developed because that style of rifle jams. It may seem counter-intuitive but maniacs using AR-15 style weapons may actually be saving lives. For certainly if they are outlawed, people bent on destruction will resort to other firearms. I believe it to be rare for anyone to own just an AR-15, most own multiple handguns as well
Posted by: SomethingWicked at February 13, 2013 12:47 PM
I am sorry to see such continued reliance on Heller's “common use” language. The lowers courts have yet to adopt it as a standard and there is real concern that it may not be a truly justiciable approach.
Particularly where regulations do not ban entire classes of firearms (e.g., assault weapon ban-by-feature & magazine capacity limits), traditional balancing tests are more useful. Randy Barnett's letter to Sen. Cruz and his Washington Examiner op-ed “Gun Control Fails Rationality Test” both outline why these regulations cannot pass any form of heightened scrutiny and often cannot even overcome the irrationality test.
While your letter offers some of the information necessary to adjudicate these balancing test, it unfortunatley stops short of the legal analysis that renders these proposed measures unconstitutional.
Posted by: Glen at February 13, 2013 01:41 PM
I have a S&W 38 Special 5 round capacity revolver. After a lot of practice I can reload it in less than 20 seconds. That means 10 shots in about 30 seconds. Who needs a semi at close quarters?
Posted by: William at February 13, 2013 01:48 PM
If we can limit the number of rounds in a firearm magazine, we can limit the number of pages in a Hustler magazine. The same specious utilitarian logic that applies to the first also applies to the second.
Also, a historical tidbit that might be of some value:
From a 1862 report by the commanding officer of the Washington Navy Yard on the Henry rifle:
"187 shots were fired in three minutes and thirty seconds and one full fifteen shot magazine was fired in only 10.8 seconds. A total of 1,040 shots were fired and hits were made from as far away as 348 feet at an 18 inch square target with a .44 caliber 216 grain bullet"
cite: Rifles: An Illustrated History of their Impact, by David Westwood, page 74.
Posted by: theBuckWheat at February 13, 2013 09:34 PM
During the Columbine massacre, in which 15 people were murdered and 21 injured, a total of four firearms were involved. The murderers also employed four knives and 99 explosive devices.
Of the firearms, only one qualified under the 1984 federal law as a banned "assault rifle". One firearm was a doubled barreled shotgun with a shortened barrel. It has long been a federal felony to saw down the barrel of a shotgun and it was also a felony to possess such an altered weapon.
Every single explosive device was a federal and state felony to assemble, possess and use, and to use in the commission of a crime.
If the memory of Columbine is ever brought up today, the failure of the law to stop the use of explosives in a school massacre is never mentioned. It is never mentioned because that gets in the way of a Gollum-like fixation on the Precious, starting with the banning of certain firearms and certain accessories but to eventually to banning all firearms.
Posted by: theBuckWheat at February 13, 2013 09:36 PM
A better term than "fully automatic" is probably "select fire." That way the current M-16 with three round burst, which is still illegal for civilian use, can be included. The three round burst is still "automatic," but why allow hair splitting and logic chopping?
As for rifle vs. pistol on mass shootings, Cho used two pistols at VT. A 9mm Glock and a Walther... in .22LR.
And finally, on magazine limitations: do gun banners really believe that the first ten rounds of a 30 round magazine are ineffective on children? Of course not, they aren't that stupid - yet their argument is. We need to pound on that sort of idiocy.
Posted by: Steve Skubinna at February 17, 2013 02:48 PM
When people talk about the "features" that turn an ordinary rifle into an "assault weapon, I think about a 1958 DeSoto.
Posted by: Larry Sheldon at February 17, 2013 05:04 PM