The assault weapons ban - politics, the Second Amendment, and the country's continued willingness to sacrifice innocent lives for 'freedom'.

• Author: Phelan, John J., IV

So, as we set out this year to defeat the divisive forces that would take freedom away, I want to say those fighting words for everyone within the sound of my voice, to hear and to heed, and especially for you, Mr. Gore: "From my cold dead hands!" (1)

1. INTRODUCTION

   The Assault Weapons Ban (2) became the law of the land in 1994 and just ten years later, in 2004, the ban ended through a sunset provision when Congress decided not to reenact the bill. From 1994 to 2004, the ban prohibited the possession, transfer, and manufacture (3) of certain semiautomatic assault firearms--such firearms are the primary weapons used in mass shootings. (4) In 1994, the ban had major public support and was enacted with the purpose of reducing those shootings. Critics of the ban asserted that the law was a knee-jerk reaction to "several high-profile shootings in the years preceding the law's enactment." (5)

   This note analyzes the flaws in the now-expired Assault Weapons Ban and proposes that a new assault weapons ban be enacted without the fundamental weaknesses of the initial ban. (6) Part II looks at recent mass shootings America. Part III explores the definition of an "assault weapon." Part IV looks to what prompted Congress to act when it passed the Assault Weapons Ban in 1994. Part V inspects the major issues with the Assault Weapons Ban and looks at the immense power the gun lobby has over our elected officials. Part VI looks to what individual states have done by enacting their own assault weapons bans. (7) Within that part there is also an explanation why state-by-state legislation is not a sufficient solution to the glaring problem of mass shootings in this country, and why federal legislation is a necessary step towards solving this quandary. Part VII suggests what a renewed Assault Weapons Ban would have to address in order to be a successful piece of legislation. Lastly, part VIII of this note explains why a renewed Assault Weapons Ban would not be a violation of Second Amendment rights under the analysis set forth in the 2008 United State Supreme Court decision District of Columbia v. Heller (8) and the 2010 decision McDonald v. City of Chicago. (9)

2. MASS SHOOTINGS IN AMERICA

   A "mass shooting" has been defined as "[t]he discharging of firearms multiple times by one or more parties into a group of unarmed victims." (10) On July 20, 2012, James Holmes walked into a theater in Aurora, Colorado during a highly publicized and newly released film, tossed two gas canisters, and then opened fire on the patrons. (11) Holmes proceeded to kill twelve and wound fifty-eight more, and his rampage stands as one of the worst mass shootings in American history. (12) That evening, Holmes carried with him two semiautomatic pistols, a semiautomatic assault-style rifle, and a shotgun. (13) Holmes also had with him a drum for the assault rifle which granted him the capability to fire one-hundred rounds before the weapon required reloading. (14)

   On December 14, 2012, at approximately 9:30 a.m., Adam Lanza fired through a windowpane on his way into Sandy Hook Elementary School. (15) Mr. Lanza then proceeded to shoot and kill twenty children and seven adults with a .223 caliber Bushmaster semiautomatic assault rifle. (16) Mr. Lanza fired "dozens and dozens" of rounds. (17) He was able to get off so many shots so quickly by using thirty-round magazines--attaching them to his assault rifle. (18) Each of the victims was shot at least twice, and some were hit with as many as eleven bullets. (19) Mr. Lanza ended the carnage by taking his own life as the police closed in. (20)

   Unfortunately for America, these incidents are not isolated ones--they are but two of the many mass shootings that have taken place in this country in the last thirty years. (21) The killings at the McDonald's in San Ysidro, California, in 1984, (22) the horror at Columbine High School in Littleton, Colorado, in 1999, (23) and the devastation at Virginia Tech in Blacksburg, Virginia, in 200724 were among the most deadly rampages in recent history, but by no means comprise an exhaustive list. The killings in Aurora, Colorado, and the other aforementioned mass shootings, as in almost every mass shooting anywhere, can be attributed to the combination of the semiautomatic assault weapon and high capacity magazines. (25)

3. WHAT IS AN "ASSAULT WEAPON"?

   The Assault Weapons Ban created criminal penalties for the manufacture, transfer, or possession of "semiautomatic assault weapon[s]." (26) It also created penalties for the possession and manufacture of certain "large capacity ammunition feeding device[s]." (27) One of the great critiques of the proposal to reinstate the Assault Weapons Ban is the inability to adequately define a "semiautomatic assault weapon." (28) It is a fair argument and to address it, it is first necessary to understand various other definitions that are typically included in the definition of an "assault weapon." (29) At its core, an assault weapon is exceedingly dangerous for two reasons: "high [ammunition] capacity and enhanced control during rapid fir[e]." (30)

   An "assault rifle" (31) is defined as "any of various automatic or semiautomatic rifles with large capacity magazines designed for military use." (32) The trouble for legislators is, and has always been, deciding what various factors suddenly turn a semiautomatic firearm into a semiautomatic assault weapon. In other words, the challenge rests in defining what features suddenly qualify a weapon as one that is generally militaristic in nature, produced for combat. Once a legislature can define what features of a weapon are "military features," it can set the standard for what transforms a legal semiautomatic firearm into an illegal semiautomatic assault weapon.

   A "semiautomatic" weapon fires only one bullet when you pull the trigger; this is in contrast to a fully automatic weapon, which fires multiple shots by just holding down the trigger once. (33) Fully automatic weapons have been heavily regulated and virtually outlawed in the United States since the 1930s by provisions of the National Firearms Act of 1934 (34) and later, even more so, by provisions of the Firearms Owners' Protection Act of 1986. (35) A semiautomatic weapon, on the other hand, is very much attainable for the majority of citizens. (36) Such a weapon, by definition, is one that loads another round into the chamber with each pull of the trigger. (37) That is, nothing more needs to be done for another round to be ready to fire--a pull of the trigger fires the shot and reloads the weapon for the next shot contemporaneously. (38) Perhaps the only feature that can slow a shooter down is the amount of rounds his/her magazine can hold. (39)

   Congress, through the Assault Weapons Ban, defined the term "large capacity ammunition feeding device." (40) It was defined as "a magazine ... that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition." (41) Since the Assault Weapons Ban is no longer good law, various states that have adopted their own assault weapons ban have chosen to define the term "large capacity ammunition feeding device" differently--that is, many states differ in how many rounds constitutes a "large capacity ammunition feeding device." (42) It should be noted that both the AR-15 and the one-hundred-round ammo-drum used at the Aurora, Colorado shooting would have been outlawed had the federal Assault Weapons Ban never expired. (43)

4. LEADING TOWARDS THE ASSAULT WEAPONS BAN OF 1994

   In the last fifty years or so, major federal legislation pertaining to guns has been enacted--from the Gun Control Act of 1968, (44) to the Firearms Owners' Protection Act of 1986, (45) to the Brady Bill of 1993, (46) and finally to the Assault Weapons Ban, a subpart of the Violent Crime Control and Law Enforcement Act of 1994, (47) it is clear Congress has been grappling with the issue of gun control.

   In terms of the Assault Weapons Ban specifically, America became increasingly concerned with regulating semiautomatic assault rifles when a schoolyard massacre took place in Stockton, California, in 1989. (48) The spree resulted in the deaths of five children and the wounding of twenty-nine others at the hands of Patrick Purdy, who was armed with an AK-47 semiautomatic assault rifle. (49) Just weeks after that, twenty-seven states had pending legislation that would ban the possession or manufacture of many different types of semiautomatic rifles and pistols. (50)

   President George H. W. Bush recognized the growing concern over semiautomatic assault weapons and, in March of 1989, issued his short-term solution through an executive order that placed a temporary ban on the import of certain semiautomatic assault rifles. (51) Bush did so by his using powers under the Gun Control Act of 1968, which required that legal rifles had to be "suitable for ... sporting purposes." (52) In 1993, President Bill Clinton took the fight against assault weapons a step further by issuing his own executive order expanding the scope of Bush's import ban by including assault-style handguns. (53)

   In 1991 a ban on semiautomatic assault weapons and large capacity magazines was included as a subtitle to the Omnibus Crime Control Act. (54) Although the bill made it out of the Judiciary Committee, the House of Representatives struck the provisions dealing with semiautomatic assault weapons and large capacity magazines by a vote of 247-177. (55) Perhaps the reason the ban did not pass in 1991 was because it gave the authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) (56) to subsequently add any weapon to the list of banned weapons if it "embodie[d] the same configuration" as the weapons listed. (57)

   Less than three years later, assault weapons ban proponents conceded the provision that would potentially grant the ATF the ability to add prohibited assault weapons later on, and Congress...