Scott Gurvey

On September 13, 1994, a ten-year ban on assault weapons was signed into law by President Bill Clinton. It had been supported by three former presidents, Gerald Ford, Jimmy Carter and Ronald Reason. The law had a built-in “sunset” provision and was allowed to expire on September 13, 2004, when President George W. Bush was in office.

The so-called Federal Assault Weapons Ban, part of the Violent Crime Control and Law Enforcement Act of 1994, was limited. It included a prohibition on the manufacture for civilian use of certain semi-automatic firearms that were defined as assault weapons as well as certain ammunition magazines that were defined as “large capacity”.

Limited or not, it was too much for the Republicans and the National Rifle Association. Democratic attempts to renew it have failed repeatedly over the years. California Senator Diane Feinstein has led the effort in the Senate. Her bill is pending before the Judiciary Committees in both houses. There have been no hearings.

To be fair, yes, some opinion writers try to be, questions have been raised about the effectiveness of the law, at least during the first few years after it was enacted. And the legal environment for gun control legislation has become more complicated in recent years, in great part due to the Supreme Court’s decision in District of Columbia v. Heller.

This 2008 opinion, decided 5-4 with  Scalia, Roberts, Kennedy, Thomas, and Alito in the majority, held for the first time that the Second Amendment gives private citizens the right to possess an ordinary type of weapon and use it for lawful, historically established purposes such as self-defense even when there is no relationship to a local militia.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Second Amendment, U.S. Constitution

I can go on for hours, and have bored many a person doing so, about how ridiculous and hypocritical the Heller opinion, written by Justice Scalia, is. But I’ll spare you. For now. Suffice it to note the opinion, dangerous though it is, still allows for the possibility that some type of weapons could be banned. One hopes, for example, the Court would allow the prohibition of nuclear bombs in a home arsenal. Still untested however, is a new ban on assault weapons.

But before a new ban can be tested, Congress has to act.

Congress is taking August off.

The Shooters Don’t Wait

On Saturday it appears a single shooter killed 20 people and wounded 26 others at a Walmart in El Paso, Texas. Police say he carried an assault rifle of the type banned by the expired law. He was captured alive by police within minutes.

Thirteen hours later another apparently lone gunman opened fire on people in downtown Dayton, Ohio. The gunman wore body armor and also used an “AK” type assault rifle. Police say he carried the “high capacity magazine” pictured on the left. It holds 100 rounds, is designed for rapid fire and would have been banned under the expired law. The gunman was killed by police in less than a minute after he started shooting. In that minute he killed 9 people and wounded at least 27 others.

If only Scalia, who frequently argued that the Constitution has to be understood in terms of what its actual words meant at the time they were written, had limited his individual right to bear arms to those highly inaccurate and slow firing weapons in use at that time. You can’t do much damage with a musket or flintlock.

Even Background Checks Can’t Be Enacted

The House of Representatives passed H.R.8, the Bipartisan Background Checks Act of 2019 on February 27, 2019. The vote was 240 – 190. It is far from perfect. But it does establish new background check requirements for firearm transfers between private parties (i.e., unlicensed individuals). Specifically, it prohibits a firearm transfer between private parties unless a licensed gun dealer, manufacturer, or importer first takes possession of the firearm to conduct a background check.

On March 4, it was “Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 29.” Its fate now rests solely in the hands of Senate Republican Leader Mitch McConnell. It hasn’t been heard from since.

Congress is taking August off.

Most polls show a significant majority of Americans favor limits on high capacity, high speed weapons designed for military use. Most polls show a significant majority of Americans favor background checks.

Congress is taking August off.

Perhaps the solution is for voters to give members of Congress who block these measures a permanent vacation.

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