Finally, the Council dismissed the constitutional impediments to assault weapon bans without good authority. Public policy on guns and violence should couple effectual controls with realistic goals.
The terms "assault rifle" and "assault weapon" are not interchangeable. Assault rifles are machine guns. Assault rifles are called "automatic" weapons because the loading and firing of a fresh cartridge is automatic as long as ammunition remains and the trigger is depressed. Such weapons have been common since the Wehrmacht's World War II introduction of the MKB(H)42. Though legal under federal law and under the statutes of 46 states, machine-gun ownership has been strictly regulated since the National Firearms Act of 1934 and, according to the recent Director of the Bureau of Alcohol, Tobacco and Firearms (BATF), Stephen Higgins, there are perhaps one or two documented misuses of machine guns in the last 60 years by their legal owners.
Though sometimes cosmetically similar, "assault weapons" are not machine-guns. Assault weapons encompass an amorphous group of guns that can only fire a single shot with each squeeze of the trigger. Assault weapons are functionally identical to other common hunting and target rifles such as the Remington 7400, Valmet Hunter, Ruger Ranch Rifle, Springfield Armory National Match target rifle, and many others. The reloading of a fresh cartridge is automatic, but the firing is not, hence all these guns are "semi-automatic." Semi-automatic weapons have been common since the development of the Borchardt pistol in 1893.
Typically assault weapons fire low or intermediate power cartridges (e.g. 9mm Parabellum, 5.56x45mm, 7.62x39mm) with non-expanding bullets that have been designed to wound rather than kill.(3) Such cartridges are considerably less deadly than most high-power hunting cartridges (e.g., .243 Winchester, 30-06, .300 Winchester Magnum) which, by definition, are designed to kill, particularly when loaded with expanding bullets.
Assault weapons sometimes share cosmetic similarities with military weapons, but the Council has not explained how cosmetic features make some guns more deadly than functionally identical weapons. Except for their "spray fire" assertion discussed below, the Council has cited no data demonstrating that a gun is more deadly by virtue of a plastic stock, a pistol grip, a durable finish, a flash suppressor, luminescent night sights, or a bayonet lug. While cosmetic features such as these may have an ominous military appearance to some, these features have little public health relevance; after all, America is not suffering from an epidemic of night bayonetings. How a person uses (or does not use) a gun is far more important than how the gun looks.
Even the capability of accepting "high capacity" magazines is an unreliable distinction since most common semi-automatic hunting and target rifles, including all those cited above, are capable of accepting factory or after-market "high capacity" magazines.
Kleck, in Point Blank, the encyclopedic 1991 review of the literature on guns, violence, and gun control, makes the public policy implications clear:
The difficulties with this political compromise (of eliminating only some semi-automatic weapons) are obvious. If semi-automatic fire and the ability to accept large magazines are not important in crime, there is little reason to regulate (assault weapons). On the other hand, if these are important attributes, then it makes little crime control sense (though ample political sense) to systematically exclude from restriction the most widely owned models that have these attributes, since this severely limits the impact of regulation.(4)
No functional features uniquely distinguish assault weapons from their "sporting" counterparts. Because there is no consistent definition, comparison of data from different jurisdictions is impeded and legally defining assault weapons as a class is impossible. Because the class cannot be defined, the California and other bans have attempted to ban guns by manufacturer and model. This approach has also failed. Despite California's ban of over 60 models of assault weapons, cosmetic changes in banned guns allow the legal sale of functionally identical weapons. For example, substituting a thumbhole stock for a pistol grip stock turns a banned "AK- series" gun into an unrestricted MAK-90, a gun neither more nor less lethal.
One of the Council's sources, gun control advocate Sugarmann, candidly stated that the public's confusion over these weapons works to his political advantage: "The semiautomatic weapons' menacing looks, coupled with the public's confusion over fully automatic machine guns versus semiautomatic assault weapons - anything that looks like a machine gun is assumed to be a machine gun - can only increase that chance of public support for restrictions on these weapons."(5)
These figures undercut the Council's assertion of increased criminal firepower from assault weapons. The Council cited only anecdotal and unsubstantiated sources to conclude: "Clearly the injuries from assault weapons are taxing hospital emergency departments in large urban areas." The authorities for the Council's assertions? Newspaper articles in which a 5% increase in multiple gun shot cases over 10 years was assumed, but not demonstrated, to be due to assault weapons; a two day survey of one emergency room in Los Angeles County embellished by anecdotes from four surgeons; other articles that, without any evidence at all, assumed, but did not demonstrate, the wounds they treated were due to assault weapons; and a "background paper" from the same California Attorney General's Office that denied the existence of their 1988 Helsley(2) and 1991 Johnson(9) studies documenting the minuscule prevalence of assault weapons amongst crime guns. Even if an increased number of multiple gun shot wounds were documented, it would be important to determine whether more attacks involving multiple assailants, as would be expected from the documented increase in gang violence, were responsible for the problem, rather than assuming that a change in criminal weapon preference had occured.
The Council writes "...assault weapons are meant to be spray fired from the hip," citing a partisan source, Handgun Control Inc., as authority. Though the Council cites Assault Rifle Fact Sheet 1: Definitions and Background of the non- partisan Institute for Research on Small Arms in International Security for explanation of gun nomenclature, the Council failed to concede that pertinent portions of the Fact Sheet note these weapons are designed for aimed fire, not "spray fire," and show that any person who shoots a semi- automatic gun rapidly without aiming will rarely hit anything.
The Council repeated the erroneous claim that these weapons are "easily converted to full automatic fire." Current law requires that all guns undergo an extensive evaluation by the federal firearms regulatory agency, BATF, to prove that they cannot be easily converted to fully automatic fire. In an April 3, 1989 New York Times article, a BATF official stated that no gun available at that time could be easily converted to machine-gun fire. A hint of the infrequency of conversions can be gleaned from the observation that about 6 of the 4,000 guns seized annually in Los Angeles have evidence of attempted conversion.(10)
Though some have claimed a particular lethality for assault weapons, a literature review finds instead that assault rifle and weapon wounds more closely approximate handgun injuries than rifle injuries:
(M)any AK-47 shots will pass through the body causing no greater damage than that produced by non-expanding handgun bullets. The limited tissue disruption produced by this weapon in the Stockton schoolyard is consistent with well documented data from Vietnam... as well as with controlled research studies from wound ballistic laboratories.(11)
In general, it is the size and location of the wound that determines the lethality of penetrating injuries. Whether knife or gun, a small wound in a vital area can be deadly where a much larger wound in a non-vital area may only injure. A larger wound, of course, increases the chance of encountering and injuring a vital structure. For firearms, larger wounds are more likely from larger bullet diameter ("caliber"), from expanding bullets, and, in certain cases, from tumbling, yawing, or fragmenting bullets. It is the location and size of the permanent wound channel, the tissue actually destroyed, that primarily determines lethality; the effects of temporary stretching ("cavitation") of elastic tissues or the sonic "shock wave" from a bullet's passage have been greatly exaggerated.(12,13) Obtaining a wound in a vital area, of course, depends upon shot placement which is a reflection of marksmanship mitigated by chance; the more skillful the marksman, the smaller the role of luck.
Discredited theories relating kinetic energy or velocity to wounding potential have no place in the scientific debate. The Council repeated such myths about "high velocity" bullets, "shock waves," "cavitation," and assault weapon wound ballistics that have been definitively dispelled.(11,12) The Council expressed its horror of the single shock wave of a high velocity bullet, failing to note that the average Extracorporeal Shock Wave Lithotripsy utilizes about 2,000 shock wave pulses, each of which is three times that of the "high velocity" bullet, without any evidence whatsoever of soft tissue damage.(11) The vogue of undue concern over "cavitation" in elastic human tissue has justifiably passed, though without the Council's notice. The Council cited a newspaper interview of a surgeon who thinks inelastic watermelons are an appropriate human tissue simulant.(14) If "watermelon wound ballistics" were valid, deceleration injury from a one foot fall would similarly crack human tissue. One must wonder whether the Council wisely or carefully selected the best scholarship available.
Gun traces are not representative of the criminal prevalence of gun use any more than the index of a research journal reflects the prevalence of disease. Journal indices and gun traces reflect a level of interest in the topic or the gun. No study corroborates the Cox or other gun trace data.
In a Report For Congress on assault weapons, the Congressional Research Service of the Library of Congress has shown that the BATF gun trace system is inappropriate for statistical purposes:
The (B)ATF tracing system is an operational system designed to help law enforcement agencies identify the ownership path of individual firearms. It was not designed to collect statistics...
Two significant limitations should be considered when tracing data are used for statistical purposes:
No crime need be involved to initiate a gun trace, for example, efforts to return stolen guns to rightful owners and guns found incidental to other investigations are included amongst gun traces. When a gun trace is tabulated as "related to organized crime," it does not mean a crime was committed, only that the officer requesting the trace suspected the gun might be that of a gang or Mafia member.(15)
The unreliable nature of gun traces is clear. For example, in 1989 in Los Angeles, a hotbed of drug gangs and violent crime, assault weapons represented approximately 3% guns seized, but 19% of gun traces.(4)
Despite these caveats, the preponderance of data currently available indicates that assault weapons, even in the hotbeds of violent crime, account for generally 0% to 3% of crime guns(4) which approximately equals their estimated representation amongst all guns in the USA.(16) This is shown in essentially all studies and reports:
Jurisdiction - Data Year(s) - Findings Akron(17) - 1989 - 2.0% of seized guns* Baltimore City(18) - 1990 - 1.5% of seized and surrendered guns Baltimore County, MD(17) - 1990 - 0.3% of seized guns Bexar County, TX (includes San Antonio)(19) - 1987 to 92 - 0.2% of homicides - 1987 to 92 - 0.0% of suicides - 1985 to 92 - 0.1% of seized guns California(2) - 1987 - 2.3% of seized rifles** California(9) - 1990 - 0.9% of seized guns Chicago(20) - 1988 - 1.0% of seized guns Chicago suburbs(21) - 1980-89 - 1.6% of seized guns Connecticut(22) - 1988 to 92 - 1.8% of seized guns Denver(23) - 1991 - 0.8% of seized guns Florida State(24) - 1989 - 3.6% of seized guns**(also documented declining use of assault weapons since 1981) Miami(24) - 1989 - 1.4% of homicides** Miami(24) - 1989 - 3.3% of seized guns** Los Angeles(10) - 1989 - 3.0% of seized guns** Massachusetts(25) - 1984 to 89 - 0.9% of homicides (study excluded Boston) Massachusetts(26) - 1988 - 1.9% of homicides Massachusetts(25) - 1985 to 91 - 0.7% of all shootings (including suicides) Minneapolis(27) - 1987 to 89 - 0.3% of seized guns New Jersey(28) - 1988 - 0.0% of homicides New Jersey(29) - 1989 - 0.0% of homicides New York City(30) - 1989 - 0.5% of seized guns New York City(7) - 1992 - 0.0% of seized guns Oakland(31) - 1990 - 3.9% of seized guns Oakland(32) - 1991 - 3.7% of homicides Philadelphia(8) - 1985 & 1990 - 0% of seized guns San Diego(33) - 1988 to 90 - 0.3% of seized guns San Francisco(17) - 1988 - 2.2% of seized guns Washington, DC(34) - 1988 - 0.0% of seized guns Washington, DC(35) - 1991 - 3.0% of seized guns* "seized" weapons were not necessarily used in crime
In 1990 the Federal Bureau of Investigation noted that 12 0f 810 (1.48%) deaths of law enforcement officers during the past decade involved assault weapons and also discussed the dearth of information on the criminal use of these firearms.(15) The US Department of Justice "Survey of State Prison Inmates, 1991" suggests that less than 1% of inmates had been armed with, though not necessarily used, a "military-type weapon" (undefined) while committing the offense for which they were incarcerated.(36) More New York City police officers were attacked in 1992 with roach spray, wood chisels, fire extinguishers, radio amplifiers, or any other of a readily available array of household objects than were attacked with assault weapons.(7)
The Council has neither acknowledged the confounding evidence, nor made an attempt to dispatch it. While none of the studies cited can be claimed to epitomize the scientific method, all but one of the studies suggest that claims about assault weapons have been grossly exaggerated. A call for better designed studies is appropriate, but, at the present time, the Council's report founders with its sole datum from the Cox Newspaper articles.
Philip McGuire of Handgun Control Inc. has publicly stated that assault weapons are not a problem, but he speculated that they might become a problem in the future.(37) When confronted with criticism regarding the lack of substantiation, the Council has expressed similar fears that assault weapons might become a problem.(19) What about such potential problems? Since these weapons have been with us from 30 to 100 years, there has been ample time for problems to appear and to be documented by sound data.
While there are important caveats in considering any current data and the definitive analysis of assault weapons in crime has yet to be done, an objective individual is justified in skepticism of deceptive and hysterical claims that assault weapons are the "criminals' weapon of choice."
Certain features, such as ergonomic design, durability, and high-capacity magazines, are noted amongst (though not unique to) assault weapons and other functionally similar weapons. Those features provoke the ire of prohibitionists, but are features that make such weapons particularly suited to popular target competitions, hunting, home defense, defense against multiple assailants, community defense, and self-protection in times of riot or natural disaster.
An exact figure is unavailable, but the number of target competitors, gun collectors, and legitimate owners of assault weapons is at least 2 million and perhaps as high as 4 million.(16)
COLLECTING, SPORT, AND TARGET COMPETITION
Despite, or because of, their military origins, true "assault rifles" and their cosmetic cousins, "assault weapons," do appeal to the collector and the target shooter. Assault weapons are increasingly used in national and international target competitions sponsored by the International Practical Shooting Confederation, the US Practical Shooting Association, and other groups. The varied and extended courses of fire and the movement of the target or the shooter in these competitions demands the ergonomics and capacity of assault weapons, even for the highly skilled competitor. More traditional target matches using assault weapons are sponsored by the US Government's National Board for the Promotion of Rifle Practice, the Director of Civilian Marksmanship (DCM), countless local gun clubs, and the NRA. Those active in these competitions number over 35,000 (the number of shooters rated and ranked for purposes of DCM competitions alone). The DCM matches originated because the armed services' national security mission was compromised by the appalling marksmanship of recruits, a problem worsened in the last three decades because recruits are a group increasingly of urban background lacking in basic gun safety and marksmanship skills. Additionally, the DCM matches were the most cost-effective recruiting tool of the military until 1991 when Congressional anti-gun sentiment removed DCM funding.(39) The DCM competitors and the US government clearly consider these matches "legitimate sporting use."
The plastic materials and protective metal finishes used in military weapons of the last three decades have proven to be particularly lightweight and durable. Though initially proven on the battlefield (as sometimes occurs with advances in trauma care), use of these materials is now common amongst hunting rifles, semi-automatic and otherwise, apropos the rough terrain, long hikes, and inclement weather associated with hunting. One finds no fault with similar durable and impact resistant materials when used in other tools, outdoor equipment, and binoculars. Many hunters also need weapons with high magazine capacity and rapid, follow-up shot capability, for example, ranchers protecting their herds and flocks from packs of predatory coyotes and farmers protecting their crops from colonies of destructive gophers.
SELF PROTECTION AND COMMUNITY DEFENSE
Citizens have the natural right(38) and the common sense duty to protect themselves, their families, their communities, and their property. The use of assault weapons by citizens in community defense can be demonstrated. Most recently the Los Angeles riots made memorable the video footage of law-abiding shop and homeowners using guns, including assault weapons, to protect themselves, their families, and their property. Determined display and appropriate use of their protective weaponry was effective. No major American city can claim freedom from similar riots and the associated deaths and damage.
As several national studies show, including the definitive study by the National Institute of Justice(40) and studies commissioned by gun-prohibitionist organizations, guns do protect good people; they are used defensively by law-abiding citizens at least 606,000 to 2.4 million times per year(4, 41) -- as many as 75 lives protected by a gun for every life lost to a gun -- lives saved, injuries prevented, medical costs saved, and property protected. This exceeds all estimates of criminal misuse. Using a gun to resist a crime or assault is safer than not resisting at all or resisting with means other than firearms.(4) Guns not only repel crime, guns deter crime as is shown by numerous surveys of criminals.(42) Arguably, when faced with mob or gang violence or multiple assailants, assault weapons represent the most appropriate means of protection.
Where the powerful images of children and innocent bystanders injured by guns are concerned, any analysis of the exaggerated extent of the problem is met with, "if it saves only one life...." Since protective uses exceed criminal misuses, a gun ban impacts more on compliant, good citizens than upon criminals. One must admit, therefore, that a good citizen's life lost because a gun was absent is at least as valuable as a vicious predator's life lost because a gun was present.
Statutes (43) and legal precedents (44) are clear that the police only have a responsibility to provide some general level of protection to the community at large. Police are under no obligation to protect any individual, even if in immediate danger.(45) An oral promise to respond to an emergency call for assistance does not make the police liable to provide protection.(46)
The withdrawal of police protection from riot-torn areas of Los Angeles and the two day delay in putting National Guard soldiers on the streets of Los Angeles exposed the illusion of public protection. Additionally, it is disturbing to recall that armed citizens had to protect themselves from the police and US National Guard soldiers who were looting in the aftermath of Hurricane Hugo.(47) Throughout American history we have innumerable examples of crime, terrorism, civil disorder, and natural disasters, where the police and military forces have been unable or unwilling to protect citizens, often for racist or political reasons.(48,49,50) One can rightfully question the wisdom of reliance upon the police or military in times of trouble.
The constitutional authorities cited above and others are quite convincing of the inherent, irrevocable right to self- protection against criminals, rioters, and tyrants. The right to keep and bear arms -- and ammunition -- is essential to that self-protection and has nothing to do with duck hunting or subjective assessments of "legitimate sporting uses" of guns.
Even if the Council could prove that assault weapons pose a serious threat to public safety, it is doubtful that an assault weapon ban would be upheld at the US Supreme Court level, a process that may take several years. It seems a waste of time, effort, and money for the Council to promote an agenda of dubious (arguably counter-productive and dangerous) efficacy and constitutionality.
Responsible ownership of any kind of firearm by mentally competent and law-abiding adults causes no social ill and leaves no victims. For predatory criminals, however, there should be inescapable punishment for violent crime regardless of instrumentality. The demonstrated effectiveness of mandatory prison sentencing for gun crimes evaporates when bartered away in plea bargains.
Two leading criminologists who have extensively studied all aspects of gun issues, Kates and Kleck, advocate certain gun controls, but not prohibition. They propose extending certain effectual and constitutional controls and -- as compromise -- repealing the ineffectual, the unattainable, or the merely symbolic. As one example, they support the mandatory check of all gun buyers at the point of sale to prevent the transfer of weapons to criminals, incompetents, and juveniles. Such checks could be accomplished as rapidly and reliably as a credit card check. They value realistic, attainable goals so they eschew utopian schemes that depend upon producing gun scarcity in a nation that already has more than 200 million guns. They emphasize that gun control is not a panacea; only incremental improvements are attainable. (4 , 61) Utopia is not an available solution to violence in our society. The reader is referred to Kates and Kleck for extended analysis.
The enforceability of proposed controls should be given adequate consideration. An overwhelming majority of law- abiding California assault weapon owners have already demonstrated their unwillingness to cooperate with an assault weapon registration and ban.(62) Good citizens who recognize a right to their weapons and who contemplate compliance with registration schemes cannot be reassured by the confiscation of weapons that has followed registrations in New York, New Jersey, and Chicago. Intolerable police state tactics would be necessary to obtain even marginal compliance -- too high a price for too little benefit.
Good evidence exists that violence in entertainment contributes significantly towards violence in our society.(64,65,66) That unwelcome contribution should be minimized. In view of First Amendment protections we should encourage voluntary restraint by an entertainment industry cognizant of its ill effects on children. Parents should exercise control over their children's viewing habits. The misdirection of anger and frustration can be mitigated by training.
We should reassess national drug policies that make the drug trade so attractively profitable that people will kill to reap those profits. We should encourage the stabilization of the American family. We must break the vicious circle of violence, parent infecting child, that stems from the abuse of children.
HL Mencken observed that for every complex problem there is a simple solution -- and it is wrong. Violence in our society is a complex problem and gun prohibition is being advanced as the simple solution -- and it is wrong. We must not be side-tracked by the illusions of simplistic "solutions."
* Paul H. Blackman, PhD, Research Coordinator, National Rifle
Association, Institute for Legislative Action, Washington, DC
* James Boen, PhD, Assistant Dean for Academic Affairs, Professor of Biostatistics, University of Minnesota, School of Public Health, Minneapolis, Minnesota
* Robert Cottrol, JD, PhD, Associate Professor, Rutgers School of Law, Camden, New Jersey
* Col. Martin Fackler, MD, Retired Chief, Wound Ballistics Laboratory, Letterman Army Hospital, Presidio, San Francisco, California
* Don B. Kates, Jr., JD, Former Constitutional Law Professor, St. Louis University School of Law, Civil Rights Attorney, Novato, California
* Gary Kleck, PhD, Professor of Criminology, Florida State University, Tallahassee, Florida
* David Kopel, JD, Attorney, Independence Institute, Golden, CO
The author is, however, solely responsible for the content of this paper.
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