S. 150: The Biggest Proposed Gun and Magazine Ban in American History

Posted on February 5, 2013

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Like other gun control supporters, Sen. Dianne Feinstein (D-Calif.) campaigned for banning handguns in the 1980s.1 Since the early 1990s, however, she has campaigned for banning a variety of firearms—mostly rifles—she calls “assault weapons,” along with any firearm magazine that holds 11 or more rounds of ammunition, which she calls “large.” Feinstein sponsored the federal “assault weapon” and “large” magazine ban imposed from 1994 to 2004.

Numbers of all of the firearms and magazines that Sen. Feinstein has advocated banning have risen to all-time highs. Americans now own about 100 million handguns, tens of millions of “assault weapons,” and so many tens of millions of “large” magazines that it seems pointless to venture an estimate.2 While Feinstein tells reporters that Americans support another gun and magazine ban,3 Americans are buying in unprecedented numbers everything that Feinstein wants to ban. Illustrating the point, Americans bought 11 million new guns in 2012, and background checks for firearms increased 53 percent percent during the November 2012-January 2013 time frame, as compared to the same three-month period a year earlier,4 coinciding with President Barack Obama’s re-election, his statement that gun control would be a “central issue” of his final term in office, and Feinstein’s announcement that she intended to introduce another bill to ban guns and magazines.5
Meanwhile, from 1991 through 2011, the nation’s murder rate decreased by more than half, to a 48-year low, nearly the lowest point in American history,6 and in the first six months of 2012 decreased another two percent.7 Nevertheless, on January 22, 2013, Feinstein introduced S. 150, her “Assault Weapons Ban of 2013.”8 The previous month, she said “I have been working with my staff for over a year on this legislation” and that, as an example of her in-depth research on the subject, she had recently looked at photographs of guns and found the photographs alarming.9


Contrary to the suggestion of President Obama and others, S. 150 goes far beyond “restoring” or “reinstating” the 1994 ban.10 S. 150 is the biggest proposed gun and magazine ban in American history. It would undermine the right of people to use firearms for self-defense, and that alone is sufficient reason to reject it. It also wouldn’t reduce crime. Studies—which Sen. Feinstein plainly misquotes—show that her previous ban didn’t reduce crime, in part because criminals rarely use “assault weapons” and rarely fire more than a few shots.

In S. 150, Sen. Feinstein proposes to:

•    Ban magazines and other such parts that hold more than ten rounds of ammunition, regardless of the firearm for which they are designed.

•    Ban 157 firearms by name. (Her 1994 ban banned only 19 guns by name.)

•    Ban detachable-magazine semi-automatic rifles and semi-automatic shotguns not exempted by name. It would ban them for having a “pistol grip,” defined to mean any “characteristic that can function as a grip.” It would also ban the rifles and shotguns for having a folding, telescoping, or detachable stock (defined as any stock adjustable for length or height, like competition- and custom-grade stocks); a forward grip; a threaded barrel; or a barrel shroud (handguard). It would also ban a semi-automatic shotgun for having a fixed magazine that holds than five rounds of any size ammunition, a detachable magazine, or a revolving cylinder. It would ban the rifles and shotguns for having a “grenade launcher or rocket launcher,” which Feinstein includes for propaganda purposes, since launchers are restricted under the National Firearms Act and aren’t present on the rifles and shotguns in question.

•    Exempt a relatively small number of detachable magazine semi-automatic rifles and semi-automatic shotguns “as such firearm was manufactured on the date of introduction of the Assault Weapons Ban of 2013.” That would mean that manufacturers of exempted rifles and shotguns wouldn’t be permitted to change the names or the configuration of the exempted guns. It would also mean that a gun owner would violate the law by modifying an exempted firearm, such as by changing the barrel length, installing a heavier “match” barrel in a rifle, changing iron sights, removing a pistol gripped stock in favor of a semi-pistol grip stock, or reducing the magazine capacity of a tubular magazine shotgun.

•    Ban all semi-automatic rifles and pistols that have fixed magazines that hold more than 10 rounds, except for tubular-magazine .22 caliber rifles.

•    Ban any semi-automatic handgun that uses a detachable magazine, if it has a threaded barrel, a second pistol grip, or a magazine that mounts anywhere other than in the grip, or if it is a semi-automatic version of a fully automatic handgun.

•    Ban frames and receivers of guns that would not be banned, because they are identical to the frames or receivers of guns that would be banned.

•    Ban “combinations of parts” from which “assault weapons” could be assembled. This could be read to ban the acquisition of a single spare part which, in conjunction with other spare parts, would constitute a unique “combination of parts.”

•    Ban parts that accelerate the firing rate of a semiautomatic rifle. This could be read to ban competition trigger parts and the like.

•    Ban all belt-fed semi-automatic firearms.

•    Prohibit people from transferring ownership of banned magazines, even through a will.

•    Require people who sell existing “assault weapons” to run the sale through a dealer, to subject the buyer to a criminal background check.

•    Exempt active and retired law enforcement officers, and military personnel from the bans. This is odd, since Feinstein claims the firearms and magazines are useful for crime, and military personnel are not issued the firearms in question.

•    “Exempt” specifically-named bolt-action, pump-action, lever-action and other manually-operated rifles and shotguns. However, naming guns that wouldn’t be banned is merely for show, as would “exempting” blue automobiles in a bill proposing to ban red ones. As with Sen. Feinstein’s 1994 exemption list, her current one doesn’t contain any handguns.


Why the Bans Wouldn’t Prevent Crimes

1. Guns that Sen. Feinstein wants to ban were never used in more than a small percentage of crime, according to the study that Congress required of the 1994-2004 ban.
Feinstein egregiously misquotes the study, claiming “In a Department of Justice study, Jeffrey Roth and Christopher Koper find that the 1994 Assault Weapons Ban was responsible for a 6.7 percent decrease in total gun murders, holding all other factors equal. They write: ‘Assault weapons are disproportionately involved in murders with multiple victims, multiple wounds per victim, and police officers as victims.’”11 The study12 was conducted by independent researchers, not by the Department of Justice, and that is not what it said. This is what it said:


•    “At best, the assault weapons ban can have only a limited effect on total gun murders, because the banned weapons and magazines were never involved in more than a modest fraction of all gun murders. Our best estimate is that the ban contributed to a 6.7 percent decrease in total gun murders between 1994 and 1995, beyond what would have been expected in view of ongoing crime, demographic, and economic trends. However, with only one year of post-ban data, we cannot rule out the possibility that this decrease reflects chance year-to-year variation rather than a true effect of the ban.  Nor can we rule out effects of other features of the 1994 Crime Act or a host of state and local initiatives that took place simultaneously.” (Emphasis added.)

•    “Our best estimate of the impact of the ban on state level gun homicide rates is that it caused a reduction of 6.7% in gun murders in 1995 relative to a projection of recent trends. However, the evidence is not strong enough for us to conclude that there was any meaningful effect (i.e., that the effect was different from zero). . . . [W]e found no statistical evidence of post-ban decreases in either the number of victims per gun homicide incident, the number of gunshot wounds per victim, or the proportion of gunshot victims with multiple wounds. Nor did we find assault weapons to be overrepresented in a sample of mass murders involving guns.” (Emphasis added.)

•     “Some of our own analyses added evidence that assault weapons are disproportionately involved in murders with multiple victims, multiple wounds per victim, and police officers as victims,” but “We were unable to detect any reduction to date in two types of gun murders that are thought to be closely associated with assault weapons, those with multiple victims in a single incident and those producing multiple bullet wounds per victim. We did find a reduction in killings of police officers since mid-1995. However, the available data are partial and preliminary, and the trends may have been influenced by law enforcement agency policies regarding bullet-proof vests.” (Emphasis added)
Feinstein also claims, “In a University of Pennsylvania study, Christopher Koper reports that the use of assault weapons in crime declined by more than two-thirds by about nine years after 1994 Assault Weapons Ban took effect.” This, however, is what that study13 said:
•    “AWs declined from 5.4% of crime gun traces in 1992-1993 to 1.6% in 2001-2002, a decline of 70%.” (Emphasis added.) Traces are not synonymous with crimes, however.14

•    “AWs were used in only a small fraction of gun crimes prior to the ban: about 2% according to most studies and no more than 8%.”

•    “Because the ban has not yet reduced the use of LCMs in crime, we cannot clearly credit the ban with any of the nation’s recent drop in gun violence.”

•    “There has not been a clear decline in the [criminal] use of ARs, though assessments are complicated by the rarity of crimes with these weapons and by substitution of post-ban rifles that are very similar to the banned AR models.”

•    “Should it be renewed, the ban’s effects on gun violence are likely to be small at best and perhaps too small for reliable measurement.”

•    “AWs and LCMs were used in only a minority of gun crimes prior to the 1994 federal ban, and AWs were used in a particularly small percentage of gun crimes.”

•    “The relative rarity of AW use in crime can be attributed to a number of factors. Many AWs are long guns, which are used in crime much less often than handguns.”

•    “Specific data on shots fired in gun attacks . . . suggest that relatively few attacks involve more than 10 shots fired. The few available studies on shots fired show that assailants fire less than four shots on average, a number well within the 10-round magazine limit imposed by the AW-LCM ban, but . . . it is usually unclear how many cases, if any, involved more than 10 shots. An exception is the aforementioned study of handgun murders and assaults in Jersey City. Focusing on cases for which at least the type of handgun (semiautomatic, revolver, derringer) could be determined, 2.5% of the gunfire cases involved more than 10 shots.”


2. California’s and Maryland’s comparable bans were followed by increases in murder. During the first five years after California’s 1989 “assault weapon” ban, the state’s murder rate increased 26 percent, compared to 10 percent in the rest of the country. During the first five years after California expanded the ban in 2000, the state’s murder rate increased 10 percent, compared to a five percent decrease in the rest of country. Since 1994, when Maryland prohibited magazines of over 20 rounds and required registration of “assault pistols,” its murder rate has decreased 41 percent, while in the rest of the country murder has decreased 48 percent.15


3. A criminal could steal, or buy on the black market or via a straw purchaser, one of the millions of grandfathered “assault weapons,” tens of millions of handguns, and/or countless millions of grandfathered “large” magazines. Most firearms designed to use magazines that hold more than 10 rounds are not “assault weapons.” Most are handguns that tens of millions of Americans have for self-defense. In 2011, more than 408,000 AR-15 rifles, designed for magazines that hold more than 10 rounds, were made for sale in the United States.16 By comparison, about 2 million handguns designed to use such magazines were manufactured or imported for sale.17 Americans own about 4 million AR-15s, tens of millions of other firearms that Sen. Feinstein wants to ban as “assault weapons,” well over 50 million semi-automatic handguns, and many tens of millions of magazines that hold 11 or more rounds.18


4. If, somehow, a criminal were unable to acquire an “assault weapon” or “large” magazines, he or she could acquire one or more pistols and numerous 10-round magazines. The mass murder that took place at Virginia Tech—the worst in our history— was committed with two pistols: one designed to use 15-round magazines, the other designed to use 10-round magazines. The police recovered 17 empty magazines and two loaded ones at the scene, and “The [investigating] panel concluded that 10-round magazines that were legal would have not made much difference in the incident. Even pistols with rapid loaders could have been about as deadly in this situation.”19 In the multiple murder at Columbine High School, in Colorado, the killer who fired the most rounds did so with multiple 10-round magazines.20


5. Criminals could switch to the firearm that gun control supporters have always most wanted banned: compact, concealable handguns,21 but with a difference. From the 1960s until the late 1980s, during which time gun control supporters campaigned against compact handguns, such guns held fewer than 10 rounds of low-powered ammunition. Sen. Feinstein’s 1994 magazine ban changed that. To comply with the ban, manufacturers developed a new generation of compact, concealable handguns holding exactly 10 rounds of medium-powered ammunition.


6. Criminals could switch to more powerful handguns. Another result of the 1994 magazine ban was to inspire gun owners to switch from handguns holding over 10 rounds of lower-powered ammunition, to handguns of the same size holding 10 rounds of more-powerful ammunition.
 
Why the Gun and Magazine Bans Would Infringe the Second Amendment

1. The Supreme Court ruled in District of Columbia v. Heller22 (2008) that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.” Contrary to suggestions that the amendment protects muskets, the Court said:


“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communication and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
2. Contrary to gun control supporters’ claims, Heller didn’t exclude semi-automatic “assault weapons” from the Second Amendment. The terms “semi-automatic” and “assault weapon” don’t appear in the decision. Firearms the Court said might not be protected by the Second Amendment were fully-automatic M16s.
3. Semi-automatic firearms and their magazines are commonly kept for self-defense, and the Supreme Court has accepted the judgment of American gun owners as to what firearms and magazines are most useful for specific defensive purposes.


•    The Court struck down the District of Columbia’s handgun ban in Heller, declaring that “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” (Emphasis added.)

•    Most handguns sold today are semi-automatics, and a significant percentage of them are designed for magazines that hold 11 or more rounds. Since the Second Amendment protects the right to own handguns, it protects the right to own magazines that handguns use, and similar magazines used in rifles, which are also commonly kept for self-defense.

•    Rifles targeted by Sen. Feinstein’s bill are particularly useful for self-defense, due to their low recoil and compact profile, such as the AR-15, the Ruger Mini-14, and the M1 Carbine. AR-15 owners also benefit from the rifle’s optional adjustable-length stock, which allows the length of the rifle to be adjusted to the physical size and clothing bulk of its user. Sen. Feinstein’s bill also targets shotguns that are in common home-defense configurations, and surely no one disputes the usefulness of shotguns for home defense.


4. A magazine ban would limit the ability of people to defend themselves. No one would prefer to have less ammunition for self-defense. That’s why magazines that hold more than 10 rounds are kept by millions of private citizens and thousands of law enforcement officers. 


5. Firearms that Sen. Feinstein considers “assault weapons” easily meet the Second Amendment standard articulated by the Supreme Court in U.S. v. Miller (1939).23 In Miller, which the Court discussed in Heller, the Court considered whether the Second Amendment protected the right to a short-barreled shotgun. Because the trial court decided the case on a summary judgment and the defense did not appear when the Supreme Court reviewed the case, the Court returned the case to the trial court, saying:

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

    While “assault weapons” are not “part of the ordinary military equipment,” rifles such as the AR-15 certainly have a “reasonable relationship to the preservation or efficiency of a well regulated militia,” and their use “could contribute to the common defense.”

The Miller Court also observed that historically the well regulated militia has consisted of individuals who, if called to service, are “expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” With Americans owning nearly 4 million AR-15s and a comparable number of similar rifles, such firearms are certainly “in common use.”

The Heller Court acknowledged the importance of the militia, saying, “First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. . . . Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”
Gun control supporters have claimed that Heller expressly excluded semi-automatic firearms they call “assault weapons,” but the terms “semi-automatic” and “assault weapon” don’t appear in the Court’s decision. The firearms that the Court said might not be within the scope of the Second Amendment are M16s, which are fully-automatic.
For more information, visit www.GunBanFacts.com.

Notes:
1. Then-San Francisco mayor Dianne Feinstein said she was “deeply committed” to her proposal to ban handguns in the city, but she carried a handgun for protection. (Ivan Sharpe, “People With Guns,” San Francisco Examiner, March 28, 1982; “Personalities: Dianne Feinstein,” Washington Post, July 31, 1982; and “Feinstein Turns in Gun,” Milwaukee Sentinel, July 31, 1982.) The ban was struck down because state law preempts local gun control laws.
2. See BATFE, “Firearms Commerce in the United States: Annual Statistical Update 2012 and Gary Kleck, Targeting Guns, Aldine de Gruyer, 1997, pp. 96-97. Because Feinstein’s 1994 ban allowed importation and sale of pre-existing foreign-made magazines, their number rose by 50 million while the ban was in effect, according to the ban’s sponsor in the House of Representatives. (Sen. Charles Schumer, D-N.Y., press release, “Schumer Moves to Renew Federal Ban on Assault Weapons,” May 8, 2003. Schumer was a U.S. Representative in 1994. Americans have bought millions more rifles and pistols designed to use such magazines since the 1994 ban expired.
3. Interview with Senator Dianne Feinstein, CNN’s The Situation Room, Jan. 30, 2013.
4. FBI, Total NICS Background Checks and Total NICS Firearm Background Checks. Over 99.3 percent of NICS are checks firearm-related and 75 percent of firearm-related NICS checks are related to the acquisition of a firearm.
5. Michael D. Shear, “Obama Vows Fast Action ion New Push for Gun Control,” New York Times, Dec. 19, 2012, and Sen. Dianne Feinstein, “Feinstein to Introduce Updated Assault Weapons Bill in New Congress, Dec. 17, 2012.
6. Claude Fischer, “A crime puzzle,” The Public Intellectual, May 2, 2011.
7. See FBI Uniform Crime Reports Data Tool for years through 2011, and FBI, January-June Preliminary Semiannual Uniform Crime Report 2012 Table 1. Note that a 1.7 percent decrease in the number of murders would translate into about a 2.2 percent decrease in the per capita murder rate, due to the increasing population.
8. http://thomas.loc.gov/home/thomas.php
9. Sen. Dianne Feinstein, “Feinstein to Introduce Updated Assault Weapons Bill in New Congress,” Dec. 17, 2012, and C-Span, Senators Feinstein and Blumenthal React to NRA, Dec. 21, 2012. Beginning at 8:53 in the video, Feinstein says that she looked at publications in 1993 and 2012, and that guns today are “more sophisticated and technologically advanced” and that “there are even devices which can be put in them legally, which make them fully-automatic.” Both claims are false. Federal law prohibits converting a firearm to fire fully-automatically.
10. David Jackson and Jackie Kucinich, Obama backs new assault weapons ban, USA Today, Dec. 19, 2012. “President Obama supports efforts to reinstate an assault weapons ban . . . his spokesman said Tuesday.”
11. Feinstein website, “Stopping the spread of deadly assault weapons” page.
12. Jeffrey A. Roth, Christopher S. Koper, “Impact Evaluation of the Public Safety and Recreational Firearms Use Protection Act of 1994, Urban Institute, March 13, 1997.
13. Christopher S. Koper, “An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003,” Report to the National Institute of Justice, June 2004.
14. See BATFE, ATF Firearms Trace Data Disclaimer (select any state and view page 2); William J. Krouse, Gun Control: Statutory Disclosure Limitations on ATF Firearms Trace Data and Multiple Handgun Sales Reports, Congressional Research Service, May 27, 2009, p. 3; and Keith Bea, CRS Report for Congress, “Assault Weapons”: Military-Style Semi-automatic Firearms Facts and Issues, May 13, 1992.
15. Note 7, FBI UCR Data Tool.
16. See BATFE, Annual Firearms Manufacturing and Export Report 2011. See the manufacturing, minus export, figures for Aero Precision, Armalite, Bushmaster, Colt’s, CMMG, Daniel Defense, Double Star, Del-ton, DPMS, Lewis Machine and Tool, LWRC, Noveske, Olympic Arms, Patriot Ordnance, Rock River, Smith and Wesson, Stag Arms, and Yankee Hill. The 408,000 figure does not include the significant production figures of Ruger and Remington, whose AR-15 production cannot be distinguished from their production of other rifles.
17. Note 2, BATFE.
18. Note 2, BATFE and Kleck, and note 16.
19. Virginia Tech Review Panel, “Mass Shootings at Virginia Tech: Report of the Review Panel,” April 16, 2007. See page 92 for discussion of magazines recovered, and page 74 for the conclusion about a 10-round magazine limit.
20. CNN, Report of the Jefferson County Sheriff’s Office.
21.  For an extensive discussion of this subject, click here.
22. To read the opinion, click here, and after the fourth paragraph click on the “Read the opinion” link.
23. Text of the Court’s decision in U.S. v. Miller.

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