Response to Justice Stevens
W. Augustus "Gus" Todd '19
Last week, retired Supreme Court Associate Justice John Paul Stevens penned an op-ed in the New York Times encouraging the students and activists involved in the “March for Our Lives” events to seek “more effective and more lasting reform” by demanding a repeal of the Second Amendment.[1] Justice Stevens argued the Second Amendment as interpreted in Heller[2] has stymied lawmakers from enacting more stringent gun control legislation. In his view, repealing the Second Amendment would short-circuit these arguments and would allow progressive gun control reforms to move forward free from possible constitutional restraints.
While I disagree with Justice Stevens on many points, I am happy to finally see some transparency in the arguments for gun control. For years, many gun owners have viewed proposed “common-sense gun reforms” as concealing an underlying purpose to effectuate an implied repeal of the Second Amendment. This lack of transparency of purpose is one reason many gun owners have dug in their heels and refused to entertain arguments for proposed gun reforms. If society really wants to debate whether the Second Amendment has continued relevancy in modern society, let us have that debate in the open. To do otherwise would be counterproductive and could then endanger other constitutionally secured rights.
I also agree with Justice Stevens that the Supreme Court is responsible for much of our current confusion over the meaning of the Second Amendment. During the decade that has followed Heller, the Supreme Court steadfastly refused to hear cases that would clarify what protections the Second Amendment actually affords.[3] The constitutionality of mandatory waiting periods,[4] bans on certain types of firearms,[5] and whether there is a constitutional right to carry firearms in public at all[6] is still unclear despite opportunities for the Court to take cases and decide those issues. Unfortunately, rather than fulfilling its duty of clarifying the law in this area, the Court instead turned the right to keep and bear arms into a “constitutional orphan”[7] and left the country in limbo.
Before I discuss why I am skeptical that many of the popular gun control proposals will have any appreciable impact on overall gun violence, it might be instructive to note that firearm ownership is already heavily regulated at the federal level. For one thing, federal law has effectively banned private citizens from owning fully automatic firearms (i.e. machine guns, or any firearm capable of firing multiple rounds per single pull of the trigger) since the enactment of the 1934 National Firearms Act.[8] Moreover, it is already illegal under federal law to give a firearm to[9] or for certain categories of people (such as felons, drug users/addicts, persons adjudicated to be mentally defective, and persons subject to domestic restraining orders or with previous domestic violence convictions) to possess firearms or ammunition.[10] Age restrictions are also in place to purchase or own a handgun or any type of long gun (rifles and shotguns).[11] The above discussion doesn’t even begin to take into consideration the existing federal background check regime required for all purchases from licensed dealers or the additional restrictions many states impose. Serious punishment awaits those who violate any of the above federal laws, especially when that violation occurs in relation to another violent crime.[12]
The above scheme still allows for the average law-abiding adult citizen to own rifles, shotguns, and handguns, if 21+, of both the manually loaded and semi-automatic variety. For clarity’s sake, a semi-automatic firearm fires only one bullet per pull of the trigger. “Automatic” is included in the name because some of the energy of the fired bullet is used to eject the spent casing, load the next cartridge, and stage the hammer into a firing position. However, unlike fully automatic firearms, the gun will not fire until the operator pulls the trigger again. By contrast, manually loaded firearms require the operator to manually operate the bolt of the firearm using either a pump action, lever action, or using a handle attached to the bolt itself to eject the spent casing, and then load the next cartridge from the magazine into the firing chamber.[13]
One of the most popular proposals for gun control is to institute a ban on “assault weapons.” This raises the difficult question of what constitutes an “assault weapon.” Previous assault weapon bans did not ban all semi-automatic firearms but instead looked to cosmetic features like pistol grips, barrel shrouds, and telescoping buttstocks as the defining feature of the “assault weapon.”[14] A semi-automatic rifle with detachable magazines that did not include these cosmetic features would not be banned. However, these additional features don’t really affect the overall lethality of the firearm, so I’m not sure why they would be relevant other than that they make the firearm look “tacti-cool.”[15]
For example, both telescoping stocks and pistol grips are primarily ergonomic features that help a person obtain a better and more comfortable grip on their firearm. These are features that should be encouraged, not form the basis of making a weapon illegal. Moreover, features like barrel shrouds, threaded barrels, and flash suppressors are cosmetic in nature and generally have no real impact on the firearm other than making it look like a military grade weapon.
Even more drastic features like bayonet mounts are primarily cosmetic, or in the case of a grenade launcher, meaningless (since the actual grenades themselves are banned under the 1934 National Firearms Act).
Even banning semi-automatic design of firearms or the ability to accept detachable magazines would likely have less of an impact than many gun control proponents would assume. Admittedly, the semi-automatic feature and ability to accept detachable magazines makes it easier to fire multiple rounds in a shorter period of time than if those features did not exist. If that is the sole basis for the argument though, then the goal would seemingly be to ban all semi-automatic firearms that accept detachable magazines, regardless of other cosmetic features they may have. But even this would likely not greatly affect the overall lethality of firearms. Instead, it would encourage firearm manufacturers to change their designs to make pump or lever action firearms fed by “stripper clips”[16] more popular. A person with basic familiarity with their firearm can achieve effective rates of fire with a pump action comparable to that with a semi-automatic firearm. Similarly, there is not much difference in the time required to reload a detachable magazine or use a stripper clip instead.
It would be wrong to see this as evidence that an assault weapons ban wouldn’t affect lawful gun owners. While the average gun owner likely can achieve similar functionality with manually operated firearms, individuals with physical limitations may not be able to operate manually operated firearms. Not only would that would render those firearms practically useless as a means of self-defense, it would needlessly inhibit their enjoyment of shooting sports overall. Similarly, the ergonomic features that can result in a rifle being banned as an “assault weapon” are useful to all shooters in making their rifles more comfortable to shoot. That shouldn’t be a reason to ban them. But more importantly, the debate itself is misplaced because it focuses on a policy that at best would have only a marginal effect on the overall lethality of the firearms themselves. Rifles and shotguns make up a vanishingly small portion of all firearm-related deaths nationwide. In fact, handguns are by far the category most often used in homicides,[17] and even then, approximately two-thirds of all gun-related homicides nationwide are suicides.[18] To focus on “assault weapons” is to look in the wrong place to combat gun-violence.
My goal here is simply to refocus the debate to where it can have the greatest impact. I am eager to participate in a serious conversation about how to lower the social costs of gun ownership in this country, but we have to start in the right place. We should not make the mistake of sacrificing an opportunity to directly address the mental health and overall violent crime issues that are driving America’s gun violence problem by making an emotionally-satisfying yet ill-reasoned choice to focus on a particular class of firearms or by making wholesale changes to the constitutional protections afforded to firearm ownership. Instead, let us have a discussion where we aim to solve the root causes of gun violence. That is a discussion that I, and gun owners like me, have been waiting to have for a long time.
wat5pm@virginia.edu
[1] John Paul Stevens, Repeal the Second Amendment, The New York Times (March 27, 2018) https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.html.
[2] District of Columbia v. Heller, 554 U.S. 570 (2008).
[3] See Silvester v. Becerra, 583 U.S. ____ (slip opinion at 12) (2018) (Thomas, J., dissenting from denial of certiorari). Arguably, the only meaningful Second Amendment case the Court has heard since Heller is McDonald v. City of Chicago, 561 U.S. 742 (2010), which incorporated the Second Amendment as a fundamental right applicable against the states.
[4] Silvester v. Becerra, 583 U.S. ____ (2018).
[5] Kolbe v. Hogan, 849 F.3d 114 (2017) cert. denied, 138 S. Ct. 469 (2017).
[6] Peruta v. County of San Diego, 137 S. Ct. 1995 (2017) (Thomas, J., dissenting from denial of certiorari).
[7] Silvester v. Becerra, 583 U.S. ____ (slip opinion at 13) (2018) (Thomas, J., dissenting from denial of certiorari).
[8] There are narrow exceptions to this rule for certain antique firearms or for people who have a Class III license from ATF. For a thorough discussion of the laws concerning automatic firearms, see Sean Davis, Here are the Actual Federal Laws Regulating Machine Guns in the U.S., The Federalist (Oct. 2, 2017) http://thefederalist.com/2017/10/02/actual-federal-laws-regulating-machine-guns-u-s/.
[9] 18 U.S.C. § 922(d).
[10] 18 U.S.C. §§ 922(g) & (n).
[11] 18 U.S.C. § 922(b).
[12] See generally 18 U.S.C. § 924.
[13] Revolvers can share characteristics of both semi-automatic and manually operated firearms, depending on the design.
[14] See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 §§ 110101, et seq., 108 Stat. 1796, 1996 (1994).
[15] Because of the visual similarities, some also mistake semi-automatic rifles patterned after fully automatic assault rifles as being the same thing. For example, this has led to many people wrongly conflating the semi-automatic AR-15 with true “assault rifles” like the fully automatic M16 and M4 rifles used by the military. “Assault weapons” and assault rifles are not the same.
[16] A stripper clip is a loading device that holds several cartridges together as a single unit for easier loading into a firearm’s magazine. They are called “stripper clips” because you strip the bullets out of them and into the magazine.
[17] Erica Smith and Alexia Cooper, Homicide in the U.S. Known to Law Enforcement, 2011, U.S. Dep’t. of Justice (Dec. 2013) https://www.bjs.gov/content/pub/pdf/hus11.pdf.
[18] See Ben Casselman, Matthew Conlen & Reuben Fischer-Baum, “Gun Deaths in America,” FiveThirtyEight https://fivethirtyeight.com/features/gun-deaths/.