By Former ATF Jay Wachtel
for Washington Post
When it comes to regulating firearms, we only pretend to legislate. And even when we do legislate, we only pretend to make them safer. Think that I’m exaggerating? Read on.
In 1994, the federal assault weapons ban outlawed a host of firearms by make and model, including the popular Colt AR-15 and several “AK” style rifles. More broadly, the law also prohibited the manufacture and sale of any semi-automatic rifle that could accept a detachable ammunition magazine (for quicker reloading), and had two or more external features such as a folding stock (to make a gun more compact), pistol grips and barrel shrouds (to help steady one’s aim) and a flash suppressor (to hide a shooter’s position). Caliber wasn’t affected but magazine capacities were limited to ten rounds. Existing weapons and magazines could continue to be possessed and transferred.
How did the gun industry respond? With cosmetic fixes. Colt renamed the AR-15 the “Sporter,” stripped off its flash suppressor and bayonet lug and modified the magazine. Other manufacturers and importers took similar measures, renaming guns and making minor tweaks.
Everyone was pleased. For liberals, the law’s passage was a victory. What got lost in the orgy of self-congratulation, though, was the purpose of the ban.
One assumes that assault rifles were picked on because they are particularly lethal. Key attributes that make them so include accuracy at range, rapid-fire capability and, most importantly, fearsome ballistics. In their most common calibers – 7.62 and .223 – these weapons discharge bullets whose extreme energy and velocity readily pierce protective garments commonly worn by police, opening cavities in flesh many times the diameter of the projectile and causing devastating wounds.
None of these real threats were addressed by the ban. Yet when the statute expired ten years later, Democrats in Congress voiced outrage and promised to secure its renewal.
Last week, a young Southern California couple armed with two pistols and two .223 caliber assault rifles viciously murdered 14 people and wounded 21, some critically. All four guns were purchased from licensed gun retailers in California, the state whose assault weapons law has been touted as the nation’s most restrictive. But as the officers who responded to the massacre in patrol cars and armored vehicles can attest, their state’s vaunted measures (its supposedly stiff provisions require, for example, that magazines be fixed in place, yet provide an easy workaround) proved hopelessly ineffective.
California, the state which gun enthusiasts love to hate, seems no more anxious to take real action against highly lethal firearms than the reticent Feds.
What makes this so? For a clue we can turn to District of Columbia v. Heller,the landmark 2008 Supreme Court case that slapped down a law prohibiting the possession of handguns. In its ruling, the Court held that the Second Amendment grants individuals the right to have firearms for “traditionally lawful purposes” such as self-protection. Going beyond handguns, the majority also endorsed the concept that the Second Amendment protects the right to possess firearms “in common use.”
What’s missing from Heller is a comparison of guns at the time the Second Amendment was written and now. Had the Framers time-traveled to a contemporary gun store, they probably would have been astonished at just how lethal firearms would become. They might have even graced the Second Amendment with an additional clause that placed limits on the madness.
But they didn’t. Neither did the Heller justices, who completely ignored the stark contrast between then and now. One wishes that a law clerk looked up Section 921(a)(16) of the Gun Control Act of 1968, which exempts weapons with antique ignition systems or that do not use fixed ammunition – in other words, the guns of the Framer’s era – from the definition of “firearm.”
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