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Please begin with an informative title:

Hear me out as I offer a different perspective on the "assault weapons" ban, the constitutional challenges the ban is likely to face and Senator Feinstein's generally excellent but still problematic proposal. By way of introduction, I am not a constitutional scholar, but I am a former U.S. government attorney who advised the government on legislative matters, including issues regarding the right to carry firearms, and litigated a number of cases for the government involving new legislation and other legal issues not previously addressed by the courts.  I offer here a very brief summary of my views on the constitutional issues and a more detailed analysis of the Feinstein proposal which can be found below the orange scroll.  

After extensive thought and research, I have reached the following conclusions:

*Despite the poor reasoning of their opinions, (with the exception of the dissents of my old law professor, Justice Breyer), the SCOTUS decisions in D.C. v. Heller (addressing how the Second Amendment impacts Federal gun control authority) and McDonald v. Chicago (relating to state gun control authority) have settled the argument that there is a individual right to keep firearms.

*No right, including the right to keep and bear arms, is absolute and without limitation.

*The constitutional debate needs to shift to what limitations are permissible instead of the existence of the right.

*It is quite possible that SCOTUS may find that “assault weapons” are not “dangerous and unusual weapons” which dicta in Heller and McDonald indicated can be banned. The issue turns on how the legislation defines assault weapons.  

*Generally, U.S. courts apply a strict scrutiny standard when a fundamental constitutional right is infringed.

*There are strong arguments that a lesser standard should apply (see Justice Breyer’s dissent in Heller) which should be used in defending any ban that may be passed. Nonetheless, the legislation should be drafted to improve the chances that it will pass a strict scrutiny test.

I have laid out a more detailed summary of my legal reasoning with quotes and references, but decided to leave it out for the sake of brevity.  I will decide whether or not to publish it depending on the response to this diary.

Meteor Blades reported here on the latest proposed assault weapons ban from Senator Feinstein. More details on her proposal can be found on her website here.

I believe that, in general, Senator Feinstein has proposed excellent reforms.  I particularly like the ban on semiautomatic pistols that have detachable magazines and the capacity to attach the magazine at some location outside the pistol grip.  However, my analysis of the issues leads me to believe that some key elements of the Feinstein proposal may not withstand constitutional challenge. Fortunately, the impact of changing those elements can be ameliorated by alternative reforms that are more likely to be found constitutionally permissible, will help strengthen the ban and may help gain the much needed additional votes in Congress. I detail below the changes I would make to strengthen the ability of the legislation to survive challenge.

Hopefully such an alternative approach will be proposed in an effort to pick up the needed votes in the Senate and the House.  I would also hope that in that case, the Daily Kos will put together a petition in support of that alternative approach.


You must enter an Intro for your Diary Entry between 300 and 1150 characters long (that's approximately 50-175 words without any html or formatting markup).

While open to a compelling argument otherwise, I believe that the focus of restrictions on semi-automatic weapons needs to be more on the magazine capacity, where detached magazines attach to the weapon and how the magazines are changed than the other features of the weapons.  Others agree.  See this editorial by Jason Ross wrote in the Washington Post which argues:

Unfortunately, by targeting guns’ form rather than their function, the efficacy of type-specific gun bans is questionable. The enforcement prospects, though, are daunting. There are probably at least 3 million assault-style weapons in American hands. As for semiautomatics in general — shotguns, rifles, pistols — the number is many times that. Buying them back would cost billions. Seizing them would provoke violent clashes as the “come and take it” crowd lived out its wildest fantasies.

The country needs a solution that limits the killing power of civilian weapons across the board — regardless of action type — while keeping enforcement costs and opposition to the new controls to a manageable minimum. Luckily, we already have it: magazine control.

Turning to Senator Feinstein’s proposed legislation, I believe that where the proposal focuses on the form of military style assault weapons, it significantly and unnecessary increases the risk of that the bill will not find the needed support and even if it does, it will fail a constitutional challenge.  Her website indicates that the legislation would ban the sale, transfer, manufacturing and importation of:
*All semiautomatic rifles that can accept a detachable magazine and have at least one military feature: pistol grip; forward grip; folding, telescoping, or detachable stock; grenade launcher or rocket launcher; barrel shroud; or threaded barrel.
*All semiautomatic pistols that can accept a detachable magazine and have at least one military feature: threaded barrel; second pistol grip; barrel shroud; capacity to accept a detachable magazine at some location outside of the pistol grip; or semiautomatic version of an automatic firearm.
* All semiautomatic rifles and handguns that have a fixed magazine with the capacity to accept more than 10 rounds.
* All semiautomatic shotguns that have a folding, telescoping, or detachable stock; pistol grip; fixed magazine with the capacity to accept more than 5 rounds; ability to accept a detachable magazine; forward grip; grenade launcher or rocket launcher; or shotgun with a revolving cylinder.
* All ammunition feeding devices (magazines, strips, and drums) capable of accepting more than 10 rounds.
*157 specifically-named firearms.
I agree with the approach on semiautomatic firearms to ban weapons that accept a detachable magazine and at least one other listed characteristic.  However, the list of disqualifying second characteristics is probably constitutionally overbroad.  It is unlikely that the government would be able to convince a majority of the current court that all of the list of second characteristics are essential to achieving a “compelling government interest” by the “least restrictive means” as required by the strict scrutiny test.  

From I have read, I believe that the biggest gains in public safety to be made are in restricting the magazine capacity and the ability to quickly change magazines.  To the maximum extent practicable and constitutional, I would like to see a ban on the manufacture and import of all semiautomatic weapons that are capable of accepting a magazine with a capacity of more than 10 bullets similar to the proposed ban on handguns with a detachable magazine that is capable of being attached outside the pistol grip. Such a ban would prevent the sale of rifles that could have their rate of fire increased by the magazines that will still be in circulation. Focusing on getting the worst of the weapons off the streets, while studying what additional restrictions are needed, would be the more productive approach. Limiting the characteristic restrictions to those representing the greatest threats and accepting the compromise necessary rather than risking the likelihood that the ban will be ruled unconstitutional offers the best chance of success.  Then as we gained a better understanding of the threats and remedies, additional steps can be taken under the changes I suggest below.      

The first change would be to eliminate from the two characteristic test in the Feinstein proposal the following characteristics.  For semiautomatic rifles, I would eliminate the pistol grip; forward grip; folding, telescoping, or detachable stock; barrel shroud; and threaded barrel from the characteristic list.  For semiautomatic pistols, I would eliminate the threaded barrel; second pistol grip; and barrel shroud from its list. For semiautomatic shotguns I would eliminate the folding, telescoping, or detachable stock; pistol grip; and forward grip from the list.  I would also eliminate the ban included in the proposed legislation on thumbhole stocks, a type of stock that was created as a workaround to avoid prohibitions on pistol grips.  The list of banned specifically named firearms might also need to be revised to reflect these changes.  

As discussed above, I would add to the list for rifle ban characteristics something similar to the banned pistol characteristic of being capable of accepting a detached magazine outside the pistol grip.  However, I do not know enough about semiautomatic rifles to suggest how to describe such a restriction or even if it is feasible or defensible, but if it proves problematic to describe in the legislation, my next change could be used to address the issue.      

I would create a regulatory scheme to be implemented by the ATF to expand the list of 2,300 specifically named exempt firearms to be included in the bill.  Three years from the date of enactment, I would ban the transfer, sale, manufacture or import of any firearm not on that ATF expanded list of approved semiautomatic weapons regardless of characteristics.  The objective would be to preclude manufacturers from trying to design around the limitations established by the bill by banning weapons that have not been approved by the ATF. Manufacturers and importers would bear the burden of proving their weapons qualified for listing rather than just putting a new design into production and making the ATF bear the burden to proving noncompliance.  ATF would be authorized to exclude any weapon from the list on a finding that the weapon either did not meet the statutorily banned characteristics or otherwise was “unusual or dangerous” under the dicta in Heller and McDonald. This could include weapons having a detachable magazine and one or more of the characteristics which I suggested deleting above from the initial ban characteristics upon an ATF finding that the use of similar weapons in mass shooting or assaults on police officers were disproportional to their numbers in circulation or other finding that the weapon as designed was unuual or dangerous. The exemption process would of course be subject to judicial review.

I would require that guns manufactured after the three year limit be marked to indicate that they have been approved by the ATF. Finally,I would also significantly increase the penalties for violations of federal gun control laws and regulations.  I would keep the rest of Senator Feinstein’s proposals.  

I would also like to see a 15% sales tax on semiautomatic weapons applied to gun manufacturers and importers to provide additional funding for buybacks of weapons not meeting the new standards in order to accelerate the reduction in the threat of these weapons.   However, I recognize that new taxes are highly likely to be dead on arrival and would not help in gaining the necessary votes in Congress.    

Extended (Optional)

Originally posted to Paradigm Change on Mon Jan 28, 2013 at 02:25 PM PST.

Also republished by Repeal or Amend the Second Amendment (RASA).

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