Yesterday Sen. Dianne Feinstein (D-Calif.) revealed that her "assault weapon" ban will not be part of the gun control bill that Senate Democrats plan to offer next month. Although her bill still can be offered as an amendment, Politico reports, "its exclusion from the package makes what was already an uphill battle an almost certain defeat."
At the risk of reading too much into this delightful development, I count it as a victory not just for the Second Amendment but for rationality in lawmaking.
As a comparison of the testimony pro and con readily reveals, supporters of Feinstein's bill never offered a plausible, let alone persuasive, explanation for the distinction she drew between the guns she deemed "legitimate" and the dreaded "assault weapons" she sought to ban.
The closer you looked at the bill, the less sense it made, a fact that Feinstein tried to paper over by encouraging people to conflate semi-automatic, military-style rifles with the machine guns carried by soldiers.
That flagrant fraud sufficed to win passage of the federal "assault weapon" ban that expired in 2004 (which was also sponsored by Feinstein), and it continues to influence public opinion.
But this time around it was not enough to obscure the absurdity of Feinsten's attempt to distinguish between good and evil guns by reference to irrelevant features such as barrel shrouds and adjustable stocks.
With no evidence or arguments to offer, Feinstein despicably invoked dead, "dismembered" children in a transparent bid to short-circuit logical thought. I savor her richly deserved defeat.
The exchange between Sen. Ted Cruz (R-Texas) and Sen. Dianne Feinstein (D-Calif.) about the constitutionality of her proposed ban on "assault weapons" at yesterday's Senate Judiciary Committee meeting nicely illustrated a familiar pattern in which people who favor new gun restrictions respond to challenges with emotion-laden non sequiturs. Feinstein, who admonished Cruz for treating her like "a sixth-grader," later told CNN's Wolf Blitzer, "I just felt patronized. I felt he was somewhat arrogant about it." If you watch the video at the end of this post, you can judge for yourself whether Cruz seemed patronizing or arrogant.
But the question he posed was perfectly fair: Given that the Second Amendment protects an individual right to arms, just as the First Amendment protects an individual right to freedom of speech and freedom of the press, isn't telling people they may not possess certain guns analogous to telling them they may not possess certain books?
In both cases, people retain most of the right guaranteed by the Constitution, but in the First Amendment context that has never been deemed enough for a restriction to pass muster. Feinstein proudly cites the list of more than 2,000 gun models specifically exempted from her ban as evidence that it does not violate the Second Amendment, which Cruz suggested is rather like publishing a list of officially permitted titles as evidence that a book ban does not not violate the First Amendment.
Feinstein could have responded by citing a constitutionally relevant distinction between the guns she wants to ban and the guns she would allow, but since there is no such distinction she resorted to bluster:
Let me just make a couple of points in response. One, I'm not a sixth-grader. Senator, I've been on this committee for 20 years. I was a mayor for nine years. I walked in. I saw people shot. I've looked at bodies that had been shot with these weapons. I've seen the bullets that implode [sic]. In Sandy Hook, youngsters were dismembered.
Look, there are other weapons....I'm not a lawyer, but after 20 years I've been up close and personal to the Constitution. I have great respect for it. This doesn't mean that weapons of war— And the Heller decision clearly points out three exceptions, two of which are pertinent here.
And so I, you know, it's fine if you want to lecture me on the Constitution. I appreciate it. Just know I've been here for a long time. I've passed on a number of bills. I've studied the Constitution myself. I'm reasonably well-educated, and I thank you for the lecture.
Incidentally, this [bill] does not prohibit—you used the word prohibit—it exempts 2,271 weapons. Isn't that enough for the people in the United States? Do they need a bazooka? Do they need other high-powered weapons that military people use to kill in close combat? I don't think so. So I come from a different place than you do. I respect your views; I ask you to respect my views.
Respecting Feinstein's views is a tall order, given the disjointed, utterly illogical way in which she defends them. Much of her response was not a response at all; it merely reiterated Cruz's point that her bill prohibits (yes, prohibits) certain guns while exempting others. His question was why that approach is acceptable in the Second Amendment context when it wouldn't be in legislation impinging on First Amendment rights. As for explaining the distinction between prohibited and permitted weapons, Feinstein simply repeats the long-running lie that there are functionally important differences between the two categories, when in fact her criteria are mainly cosmetic, having little or nothing to do with a gun's usefulness to a mass murderer or ordinary criminal. She falsely asserts that semiautomatic "assault weapons" are the same as the machine guns carried by soldiers and even suggests they are akin to bazookas.
It is not clear what "three exceptions" Feinstein had in mind when she referred to District of Columbia v. Heller, the 2008 decision in which the Supreme Court recognized that the Second Amendment protects an individual right to arms. Writing for the majority, Justice Antonin Scalia did say that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Those are three things, but Feinstein's bill has nothing to do with any of them. Scalia also mentioned "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" But so-called assault weapons, which are among the most popular rifles in America, are not unusual, and Feinstein has never explained in what sense they are especially dangerous—why, for example, a perfectly legitimate gun become an intolerable threat to public safety when you add a barrel shroud or an adjustable stock. In fact, a general principle endorsed by Heller—that the Second Amendment applies to weapons "in common use for lawful purposes"—implies that Feinstein's bill, as Cruz suggested, is unconstitutional.
The rest of Feinstein's argument takes the following form: I've seen people shot; therefore my bill is constitutional. Or as she put it to Blitzer, "When you come from where I've come from and [seen] what [I've] seen, when [you've] found a dead body and put your finger in bullet holes, you really realize the impact of weapons." A legislator who considers such experiences and feelings to be a sound and sufficient basis for passing any law, let alone a law that abridges a fundamental right, is a public menace. Which is why this was the scariest thing Feinstein said during her scolding of Cruz: "I've been on this committee for 20 years."
In the wake of the Sandy Hook school shooting, both President Obama and Sen. Diane Feinstein (D-CA) have unveiled proposals to ban assault weapons in the absence of the since-expired 1994 assault weapons ban. Although 44 percent of Americans favor banning assault weapons, according to the most recent Reason-Rupe poll, only 27 percent believe it would have helped avoid the Newtown tragedy. Nevertheless, belief that the expired federal ban could have prevented the shooting does bolster support for renewed efforts to ban assault weapons.
The Huffington Post reports Connecticut has a state assault weapons ban modeled after the now expired 1994 federal ban. Despite the ban, Connecticut law enforcement has reported Newtown shooter Adam Lanza’s weapons were still legal in the state. Taken together, it seems unlikely that had the 1994 federal ban still been in effect it could have prevented the Newtown school shooting.
Among the 27 percent who thought the 1994 federal ban could have prevented the shooting, 72 percent were under the impression the law would have impeded Lanza from obtaining the firearms used. This helps explain why 77 percent of these Americans support renewed efforts to ban assault weapons nationally, but 18 percent still support private ownership of assault weapons. Those who believe the expired ban could have prevented the shooting are also significantly less likely to posses a firearm (30 percent), while 68 percent do not.
In contrast among those who do not believe the expired ban would have prevented the shooting, 66 percent believe Americans should be permitted to own assault weapons while 30 percent believe they should be prohibited. These households were significantly more likely to own a firearm (48 percent) while 47 percent do not.
To be clear, not all Americans who favor an assault weapons ban today think the previous ban could have prevented the Newtown tragedy. While 48 of assault weapons ban supporters believe the previous ban could have prevented the shooting, 45 percent disagree. Only 10 percent assault weapons ban opponents believe the expired ban could have prevented the shooting.
In sum, the perception the 1994 federal assault weapons ban could have prevented the Newtown massacre does explain a significant portion, although not all, of the support for a new ban.