The Problem of Assault Firearms

Franklin E. Zimring

Rational discussion of the public law control of assault firearms requires both sustainedattention to the definition of assault weapons and historicalperspective on the control of special high-risk firearms. This article reviews sociological, mechanical and functional approaches to the definition of assault firearms and discusses previous attempts in federal law to deal with special categories of high-risk weapons.

The debate about gun control in the United States has become something of a bore -the same people saying the same things about the same guns ad nauseam. Our hearts should therefore go out to media producers across the land who keep hoping that events will rescue the controversy about guns and gun control from the repetitive point- counterpoint of the past decade. From that perspective, the schoolyard shooting in Stockton, Califor- nia, in January 1989, as well as reports of drive-by shootings, teenage gang machine-gun fights, and drug dealers with personal assault rifle armories, seems a media coordinator's dream-a new angle on an important subject that had grown tiresome. Media and legislative attention have shifted lately from handguns to what are called assault weapons. 1989 promises to be the year of the assault rifle. For those who wonder whether there is anything really new in all of this, the answer is both yes and no. The specific focus on so-called assault weapons is a new one, but most of the dispute still involves the usual suspects saying the same things. Also as usual, the debate over the wisdom of controlling assault weapons is proceeding in a factual vacuum. Most citizens, including many with strong views on the wisdom of controls on so-called assault weapons, know little about them. Here are seven questions about assault weapons that do not have answers as of mid-1989:

FRANKLIN E. ZIMRING: Professor of Law and Director, Earl Warren Legal Institute, University of California at Berkeley.

CRIME & DELINQUENCY, Vol. 35 No. 4, October 1989 538-545 @ 1989 Sage Publications, Inc.

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1. How many assault weapons are owned by civilians in the United States? 2. How much have the ownership and use of these weapons increased in recent years? 3. What sorts of people own these weapons and for what reasons? 4. How many crimes and what sorts of crimes involve assault weapons? 5. Are wounds inflicted by assault firearms more likely to kill than wounds inflicted by other firearms? 6. How many legitimate uses of these weapons would be curtailed if civilian ownership were prohibited? 7. If these weapons were successfully prohibited, what impact would that have on gun crime in the United States and on its costs?

Amidst all this ignorance, a rational discussion of the control of assault-type weapons can best be organized around three issues: (1) What is an assault rifle? (2) Why are these guns regarded as a special problem these days? and (3) How should the controversy over these weapons fit into the larger mosaic of the great American gun control debate?

WHAT IS ANASSAULTRIFLE?

The question of what qualifies as an assault firearm or assault rifle is neither simple nor easy to answer. It is, however, key to understanding the subject. Most people, when decrying the proliferation of assault rifles, define their terms by mentioning specific brand names: an assault gun means the Uzi, the AK-47, the Mac-10, and other similar weapons. Such guns have actions that are either automatic (one trigger pull will continuously discharge bullets pushed into the chamber from the magazine) or semi-automatic (each trigger pull will discharge a single bullet, but multiple pulls can quickly discharge a large number of bullets stored in the magazine). Since automatic firearms are now covered by restrictive federal law, it is the semi-automatics that have become the focus of new control proposals and debate. The definitional problem is that not all semi-automatic weapons are classified as assault rifles by most of the people who want to ban such rifles. Some semi- automatic rifles are used for sporting purposes. The problem is how to tell the bad semi-automatic weapons from the good ones. Three different strategies have been used to define "assault weapons." Some proposals would simply ban a list of specific weapons by brand name and action. An example of this nominal approach is a bill 540 CRIME & DELINQUENCY / OCTOBER 1989 that was recently approved by the California State Assembly Public Safety Committee. A second approach would discriminate among semi- automatic weapons by their mechanical capacities. Thus, some proposals would ban semi-automatic rifles with a magazine capacity of over fifteen or twenty rounds of ammunition while allowing those with smaller capacity. The larger magazine size means more bullets are available for rapid-fire release. A third approach would draw the line between good and bad semi- automatic weapons by having experts sort these matters out after the fact of legislation. Thus, some proposals would have a board of ad- visors determine whether a particular type of semi-automatic weapon is unsuitable for sporting purposes and thus subject to special stric- tures. The criteria would include the use for which the weapon was originally designed, the recent history of its use, and mechanical elements such as magazine size.

WHY THE FUSS?

The diversity of approaches to defining assault rifles puts us on notice that there is no clear consensus on why assault weapons are a special gun control problem. In fact, there are three separate theories on why assault weapons are a problem that mirror the three separate strands of definition discussed above. They can be called sociological, mechanical, and functional complaints about assault rifles. The sociological approach defines the real problem with assault weapons as the people who are using them. The complaint about the Uzi and the AK-47 is that these are the guns used by drug dealers, violent teen gangs, and paramilitary groups. This approach is generally favored by people who wish to define the bad weapons by their reputation and thus by brand name. A mechanical approach defines the reason for special concern with assault weapons as their capacity to discharge a substantial number of bullets quickly. This complaint matches definitions keyed to how quickly weapons discharge ammunition and how much ammunition they can store in magazines for rapid fire. A third approach sorts through good versus bad semi-automatic weapons by the functions they are suited to or were designed to per- form. Semi-automatic weapons might be sorted into those suitable for sporting purposes and those that are only military or primarily military Zimring / Assault Firearms 541 or antipersonnel in character. This approach is usually linked to definitions by reference to expert opinion. The theory is that the experts will easily distinguish between real sporting weapons and military weapons. Each of these approaches has advantages and drawbacks. Listing the guns one wishes to ban by brand name is simple and specific. But one problem is that the same sorts of guns can soon be made by different companies. A second problem is that labeling guns solely by brand name conspicuously lacks principle. An approach that discriminates by the mechanical features of weapons achieves precision in definition but may do so at the price of being arbitrary. The law can differentiate between allowable and unallowable semi-automatic weapons by features such as barrel length or magazine capacity, and these features do reflect problematic aspects like con- cealability or the amount of ammunition that can be discharged in a short period of time. The problem is arbitrariness at the border. Why is a sixteen-bullet magazine the stuff of outlawry while a fifteen-bullet magazine is considered the ballistic equivalent of kosher? One way around this arbitrariness is to set up a panel of experts to sort out antipersonnel from sporting weapons. The problem here is that the line between sporting and nonsporting weapons may not be so easy to draw. Some of the things that make semi-automatic firearms fun for hunters and target-shooting lawyers make the same weapons attractive to paranoids and drug dealers. Lurking behind these problems of definition is a major-league con- ceptual difficulty: Is the real problem the functional capacity of the guns or the nastiness of the people who use them?

A HISTORY LESSON

At various times in American history, similar problems have cropped up in other gun laws. In 1934 Congress attempted to deal with the problem of so-called gangster weapons by sharply restricting civilian ownership of all automatic firearms and sawed-off shotguns. The 1934 legislation successfully solved a small problem at a small cost. Machine guns, never an important part of American gun crime, never became a significant problem. Whether the Thompson submachine gun would have fallen back into obscurity without legislation or grown into the menace that the proponents of the legislation made it out to be will never be known. The restriction of machine guns and sawed-off 542 CRIME & DELINQUENCY / OCTOBER 1989 shotguns was achieved at little social cost because these so-called gangster weapons had few sporting purposes that were sacrificed as a result of the prohibition. The 1934 precedent was important as a symbolic compromise. Most of the supporters of this legislation were also after more comprehensive national legislation on other guns, guns that had a significant civilian constituency. The restriction of gangster weapons was a compromise that stopped restricted federal law at the boundary between popular and unpopular guns. More recent laws also provide help in understanding assault rifle proposals. The Gun Control Act of 1968 amended the 1934 law to restrict so-called destructive devices, including military weapons like bazookas and hand grenades. This law has been relatively uncon- troversial. But its supporters cannot take sole credit for the fact that hand grenades and bazookas are not an important part of urban crime in the 1980s, because neither ownership nor use of such weapons was ever a major problem. This law solved what was at most a small problem at a small cost. The destructive device legislation of 1968 sets a precedent for assault rifles only to the extent that civilian ownership of assault rifles is low and the sporting uses of such guns are minimal. A more important part of the 1968 legislation is also a more dis- couraging precedent for control of the assault rifle. The 1968 law banned the importation of so-called "Saturday night specials," handguns defined as unsuitable for sporting purposes. This legislation was generally considered a failure for three reasons, two of which are relevant to assault rifle legislation. The first problem with the 1968 legislation was that while banning the importation of whole handguns, Congress failed to prohibit the importation of their parts. The importation of handgun parts increased dramatically after the date of that law. The second problem with the ban on imported Saturday night specials was that cheap domestically-produced handguns turned out to be just as deadly as cheap handguns produced in other countries. How could the authors of the 1968 legislation miss this obvious point? Perhaps because the Saturday night special was defined in an ad hominem way. What was wrong with the cheap foreign handguns was the people who were using them. It was only after the same people switched to other weapons that the other weapons became the problem. This is worth remembering because of the ad hominem quality of the brand-name definition of assault rifles. If the real difference between an AK-47 and other semi-automatic firearms is only the people who are Zimring / Assault Firearms 543 using the AK-47 this month, what is to stop them from switching to other semi-automatic weapons? Fad and fashion in weapons choice are significant elements in the epidemic of violent crime that confronts American urban life. But we are more likely to see a sustained decrease in the use of rapid-fire weapons if the law restricts all classes of weapons that possess the mechanical capabilities that have led them to acquiring an underworld cachet. A final lesson of the 1968 Saturday night special legislation is that gun control laws without principle can return to haunt their proponents. Part of the legal definition of the Saturday night special made sense in 1968 and makes sense today: short barrel lengths make handguns more concealable and also less suitable for target shooting. But imported handguns turned out to be no more dangerous than American-made handguns, and large-caliber handguns were in fact no more intrinsical- ly sporting than small-caliber handguns. The law that gives large- caliber guns credit toward being classified as sporting weapons does not make criminological sense. The lessons of this history lead to three modest proposals for im- proving the quality of debate in this, the year of the assault weapon. First, legislative bodies, police departments, and those who collect law enforcement statistics should start assembling some very basic data about semi-automatic firearms and their misuse. The Bureau of Al- cohol, Tobacco, and Firearms can help us estimate how many such weapons have been introduced into the civilian market in the United States over the past five years. Special studies of police offense reports will be necessary to estimate the role of these weapons in aggravated assault, robbery, and homicide. There is a substantial margin of error in such studies because assault weapons use many of the same kinds of ammunition that other rifles and handguns do. But we can double the amount of useful information about the role of semi-automatic weapons in violence in the United States in three or four months of serious effort. And failure to start gathering data on the use of these weapons condemns the debate on assault rifles to a state of perpetual silliness. A second way to improve the debate around restriction of "assault weapons" is to focus on one of two definitions. Either we should argue about legislation restricting the availability of semi-automatic firearms that can accommodate magazines containing more than, for example, fifteen rounds of ammunition, or we should debate the restriction of all semi-automatic firearms. 544 CRIME & DELINQUENCY / OCTOBER 1989

The first proposal is a more modest incursion into sportsmen's prerogatives and is attainable at more modest costs. Existing weapons would be permitted under a "grandfather clause" as long as they were registered by their owners and not transferred to other than family members. The second definition would have broader impact. A proposal to restrict all semi-automatic firearms would focus attention on whether the mechanical features of such weapons justify legal controls not imposed on most firearms, including handguns. Either of these approaches is preferable to prohibitions based on the brand names of guns, or on hearsay information about the current street reputation of weapons, or on the belief that expert opinion can develop a litmus test for the sporting purposes of semi-automatic weapons at some future date. The final lesson of history is the most important. Whatever we do about assault rifles, and whenever we do it, historians will record it as a minor chapter in the evolution of American policy toward firearms. One of the most tiresome elements of the American gun control debate is that pro- and anti-control forces seem more enthusiastic about bash- ing each other, about the sheer joy of disputation, than about coping with the problems of firearms and violence in American life. Some proponents of controls begin to think that all victories over the NRA are of equal significance, just as the NRA tries to defeat any proposal to restrict the availability of any gun. Proponents of "assault weapon" controls should not claim too much for these proposals. Just as the traditional opponents of firearms control proposals have been embarrassed lately by their apparent embrace of drug dealers and paramilitary kooks in the dispute over assault rifles, those who would make policy toward the assault rifle seem a central part of the American crime control agenda might find themselves embarrassed in the near future. In the evolution of policy on firearms and violence, the easily concealed Smith and Wesson handgun is a much more important gun than the AK-47. There is probably no city in the United States where semi-automatic rifles pose one-tenth the crime problem of handguns. Control proposals that restrict the growth of civilian ownership of semi-automatic rifles might help keep a small problem from growing larger. Any more grandiose expectations will only prove self-defeating. The tiresome debate about handguns is, and will continue to be, the main issue of gun control in the American future. Zimring / Assault Firearms 545

REFERENCES

Newton, George P. and Franklin E. Zimring. 1969. Firearms and Violence in American Life. Task Force Report to the National Commission on the Causes and Prevention of Violence. Washington, DC: U.S. Government Printing Office. Zimring, Franklin E. 1975. "Firearms and Federal Law: The Gun Control Act of 1968." Journal of Legal Studies 4:133-98. Zimring, Franklin E. and Gordon Hawkins. 1987. The Citizen's Guide to Gun Control. New York: Macmillan Co.