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The Debate Begins: U.S. Senate Moves Forward on New Anti-Gun Bills

Wednesday, May 1, 2013

By Chris W. Cox, NRA-ILA Executive Director

Since the beginning of the year, gun owners have faced a legislative and media onslaught. In the states, anti-gun governors and legislators have used every dirty legislative trick in the book to try ramming through disastrous anti-gun bills—and New York Gov. Mario Cuomo, unfortunately, has already succeeded.

Now, the fight moves to Capitol Hill. In late February and early March, the U.S. Senate started taking action on anti-gun legislation that includes a vastly expanded semi-auto and magazine ban, as well as a ban on private firearm transfers that sets the stage for gun registration. By the time you receive this magazine, we may be in an all-out battle on the Senate floor.

The action began on March 7, as the Senate Judiciary Committee took up S. 150, the “Assault Weapons Ban of 2013” introduced by Sen. Dianne Feinstein, D-Calif., and continued on March 12 with S. 374, the “Fix Gun Checks Act of 2013,” sponsored by Sen. Charles Schumer, D-N.Y..

The opening moves on S. 150 took place Feb. 27, when Feinstein held a special hearing to promote the bill. Before we get to what was said at that hearing, let’s look at the facts.

The 1994 semi-auto ban was successful in achieving its sponsors’ real goals: scoring a political win for gun-ban activists, and interfering with the right to keep and bear arms. But it was a failure in protecting public safety.

The Department of Justice funded multiple studies to measure the ban’s impact on crime. In 1997, researchers concluded that there was no evidence that the ban had any meaningful effect. A follow-up in 2004 concluded that the ban produced, “no discernible reduction in the lethality and injuriousness of gun violence.” 

Those are the facts. But gun-ban supporters at Sen. Feinstein’s hearing never let the facts get in the way.

John Walsh, the U.S. Attorney for Colorado, and Milwaukee, Wis. police chief Edward Flynn were two of the witnesses supporting the gun and magazine bans, as well as “universal” background checks. 

Sen. Lindsey Graham, R-S.C., asked both men if they knew how many murders are committed with rifles of any type, and how many prosecutions they had undertaken of criminals who failed background checks when illegally trying to buy guns from dealers. Walsh didn’t know how many murders involved rifles—but did admit he had filed no prosecutions.

Chief Flynn then interrupted Graham, claiming that prosecuting criminals who try to buy guns was irrelevant. Flynn’s efforts to speak over Graham were so disrespectful that Feinstein was forced to cut off her own witness to restore order. In contrast, Graham showed restraint, noting that rifles of any type are used in only about 2.5 percent of murders; murders are twice as likely to be committed with bare hands.

Indeed, Flynn’s behavior was so inappropriate that it prompted the sheriff of Milwaukee County, David A. Clarke Jr., to write Graham with an apology on behalf of his citizens: “Please do not see [Chief Flynn’s] arrogance as exemplary of the people in Milwaukee County.” (If Sheriff Clarke’s name is familiar, it may be from the national attention garnered by the public service announcements he ran on local radio stations this January, warning citizens that “[w]ith officers laid off and furloughed, simply calling 9-1-1 and waiting is no longer your best option,” and urging them to get firearm training.)

Prosecutor Walsh had a lot to say about banning guns, but some of it didn’t help Feinstein’s cause. When asked by the committee’s top Republican, Sen. Charles Grassley, R-Iowa, whether S. 150 would be constitutional, Walsh said that it would be constitutional only if the guns that are banned are not common, are “dangerous and unusual” and are not useful for self-defense. Of course, the semi-autos targeted by S. 150 are very common, and are not “dangerous and unusual” in the way Founding-era laws used that term. And obviously, magazines that hold 11 or more rounds, and the firearms designed to use them, are certainly useful for self-defense.

While Feinstein and her allies relied on emotional arguments to advance their cause, witnesses opposing the ban made a strong case for the Second Amendment. Those witnesses included former U.S. Rep. Sandy Adams, R-Fla., Fordham University law professor Nicholas Johnson, and attorney and constitutional scholar David Hardy.

Prof. Johnson explained why S. 150’s definitions of “assault weapon” are “unsustainable under the lowest level of constitutional review [and] fail even to meet the rudimentary, rational basis requirement.” For example, he pointed out that a conventional shotgun that wouldn’t be banned under Feinstein’s bill can put more projectiles on target than many guns that would be banned. 

In response to that sound analysis, anti-gun Sen. Dick Durbin, D-Ill., launched into an attack on Prof. Johnson. Saying that “what has become common in America is unacceptable in a civilized country,” Durbin wouldn’t let Johnson respond to his diatribe, and falsely claimed that AR-15s and similar firearms had been “excluded by Heller,” referring to the landmark case that ended Washington, D.C.’s almost complete gun ban.

Durbin then went after Rep. Adams, a former law enforcement officer, who had testified on the ineffectiveness of the 1994 gun ban. After Adams acknowledged that her husband—a fellow law enforcement officer—had died in the line of duty, Durbin sarcastically said, “I’m sure you’ll now support the universal background check to keep the guns out of the hands of criminals, won’t you?” Ignoring the insult, Rep. Adams kept her composure and simply replied, “No, sir.” 

A week later, during committee consideration of Feinstein’s bill, an amendment authored by pro-gun Sen. Grassley laid bare the hypocrisy of anti-gun politicians. The amendment called on the Justice Department to provide written explanations of why, out of more than 76,000 instances in which the instant check system denied the purchase of firearms, only a few dozen would-be buyers were prosecuted. Committee Democrats, led by Feinstein, claimed that the amendment would be too big a paperwork burden on the DOJ, and voted it down. (Of course, they don’t have the same concern for law-abiding gun owners, as they’ve demanded for decades that paperwork be completed for gun licenses, gun registration schemes and firearm transfers.)

Feinstein also saw no hypocrisy in opposing an amendment by Sen. John Cornyn, R-Texas, to exempt military personnel and veterans from the ban. In arguing that the men and women who risk their lives to protect our freedoms should be banned from owning semi-auto rifles such as the AR-15, she said that post-traumatic stress disorder—which she absurdly claimed was a new phenomenon from the Iraq war—made the exception too risky. This level of mistrust of those who have fought to secure our rights is typical of how anti-gunners see all Americans.

At the end of the March 7 hearing, the committee put off action on the Feinstein bill for a week, and turned to Schumer’s attack on private gun sales. Under the guise of making improvements to the instant check system, the bill would criminalize the overwhelming majority of private firearm transfers unless they have federal government approval. Schumer drafted S. 374 when his efforts to get a bipartisan compromise broke down over his insistence that records be kept on every firearm transfer. That issue is at the core of this fight, because, as President Obama’s own Justice Department researchers have pointed out, “universal” background checks are unenforceable without registration. 

Of course, they are also not “universal,” as criminals will never submit to them, and compliance would be a challenge even for the law-abiding. Consider that all of the following would be illegal under S. 374, as law professor David Kopel of the University of Denver pointed out in testimony on a similar bill two years ago:

  • Lending a lifelong friend your gun while the two of you go target shooting on your farm, or on the many undeveloped public lands where informal target shooting is allowed; 
  • Handing a gun to a student while teaching a classroom lesson in an NRA firearm safety course; and
  • Sharing a gun for self-defense anywhere outside the home, regardless of the level of danger at hand.

Sen. Grassley took strong exception to the bill and listed its many flaws, making the case that the bill sets up gun registration as the likely next step if S. 374 were to become law. Unfortunately, the committee sent S. 374 on for full Senate consideration on a party-line vote.

At press time, the situation is very fluid and the outcome in the Senate is uncertain. But one thing is clear: This attack on our rights is unprecedented in the last two decades, and the gun-ban forces will win if we do not act now.

We can only win if all NRA members—and everyone else who cares about the future of the Second Amendment—make their voices heard. Contact your elected officials today, and respectfully urge them to protect our fundamental, constitutional right to keep and bear arms. 

To identify and contact your lawmakers, use the “Write Your Reps” feature at www.nraila.org/writeyourreps, or call your U.S. senators and House member at(202) 224-3121.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.