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.