#DIW: What the #Disability Community Should Know about Gun Control – Part 2 (Definitions, 1-feature versus 2-feature tests, and high-capacity magazines)

Hello and welcome to Part 2 of this multi-part series for Day in Washington. Crafted, in part, as a response to the Orlando shooting, the purpose of this series is to provide some basic information about gun control legislation. I have an agenda and that is to do what I can to make sure it never happens again.

When it comes to legislation on gun control, or any legislation for that matter, definitions are a critical component that should never be overlooked. Definitions determine what is “in” and what is “out;” what is covered by the law, and what is beyond the law’s authority.

CAUTIONS AROUND THE ASSAULT WEAPONS BAN

As I stated previously, to better explore legislative language and to avoid some of the heightened emotion around current legislation, I will start with the Federal Assault Weapons Ban (you may recognize some of the pieces from it showing up in current rhetoric). But, before I begin I did want to add a note of caution. Although I am focusing on the language of the Public Safety and Recreational Firearms Use Protection Act (more commonly thought of as the Assault Weapons Ban), there is some question as to the actual usefulness of the legislation.

From FactCheck.org’s Robert Farley (who explains it in a well cited, thoughtful manner):

“Both sides in the gun debate are misusing academic reports on the impact of the 1994 assault weapons ban, cherry-picking portions out of context to suit their arguments…[they] are selectively citing from a series of studies that concluded with a 2004 study led by Christopher S. Koper, “An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003.” That report was the final of three studies of the ban, which was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994.

The final report concluded the ban’s success in reducing crimes committed with banned guns was “mixed.” Gun crimes involving assault weapons declined. However, that decline was “offset throughout at least the late 1990s by steady or rising use of other guns equipped with [large-capacity magazines].”

The need for additional information definitely points to #7 from my Gun Control Policy Basics in Part 1 – to allow, fund, and increase firearm injury research.

DEFINITIONS

There is been quite a bit of coverage of assault weapons, discussions about the AR-15 in particular, about semiautomatic firearms, machine guns, assault rifles, and about renewing the Assault Weapons Ban. With all the terms being thrown around, and many of them used incorrectly, it is horrifically confusing.

Automatic vs Semiautomatic Weapons:

Automatic Weapons will fire bullets as long as the trigger is held and ammunition is available. Machine guns are a class of automatic weapons. The transfer and possession of these was made illegal in the Firearm Owners’ Protection Act of 1986.

There are 2 exceptions: 1. A grandfather clause that says if you owned it before then, you could keep it, but they’d have to be registered; and 2. if it was being used by the military or law enforcement.

Semiautomatic Weapons will fire one bullet for each trigger pull. Assault weapons are a class of semiautomatic weapons, as are pistols, hunting rifles, and shotguns.

Assault Rifle:

I’ve heard people use this interchangeably with Assault Weapon, but they are different. Although with so many people misusing the term, one could argue that this technical term is being redefined. An assault rifle usually refers to military rifles that can be switched back and forth between automatic and semiautomatic styles of shooting (as well as bursts – but that isn’t relevant for this discussion).

Assault Weapon (as per the Federal Assault Weapons Ban):

The legislation listed 19 firearms by name that were banned and any weapon that had two features from a list –  “A 2-feature test.”

‘‘(B) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of—

  • ‘‘(i) a folding or telescoping stock;
  • ‘‘(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
  • ‘‘(iii) a bayonet mount;
  • ‘‘(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and
  • ‘‘(v) a grenade launcher;

‘‘(C) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of—

  • ‘‘(i) an ammunition magazine that attaches to the pistol outside of the pistol grip;
  • ‘‘(ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;
  • ‘‘(iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned;
  • ‘‘(iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and
  • ‘‘(v) a semiautomatic version of an automatic firearm; and

‘‘(D) a semiautomatic shotgun that has at least 2 of—

  • ‘‘(i) a folding or telescoping stock;
  • ‘‘(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
  • ‘‘(iii) a fixed magazine capacity in excess of 5 rounds; and
  • ‘‘(iv) an ability to accept a detachable magazine.’’.

Seems clear enough, yes? But there are some interesting controversies surrounding the definition. It has been argued that some of the features outlined in the legislation are cosmetic in nature and have no bearing on the effectiveness of the firearm. The image below is an example that highlights this point.

Assault-Weapon-Bans-Shotguns The top one looks like a standard shotgun. The one below has a pistol grip and a telscoping stock. Under the top one it says LEGAL. Under the bottom one, it says ILLEGAL. Beyond those two differences, the weapons are identical.

It is the exact same shotgun, firing the exact same rounds, only the second one has a pistol grip and a folding/telescoping stock. Referring back to my initial statement about definitions in legislation – one is IN and one is OUT. Did the legislation do its job?

It has in fact been argued (on at least a couple of websites and forums) that some of those features could be considered accommodations for shooters with disabilities because they make it easier for someone with limited dexterity to use the weapons.

The counter-argument to this can be seen in the graphic below from the Law Center to Prevent Gun Violence – The Anatomy of an Assault Weapon. They focus on how those features such as a pistol grip makes it easier for the shooter to control the trigger, magazine, and safety easily or how a barrel shroud (or forward pistol grip) allows one to minimize recoil and increase control when firing rapidly.

anatomyassaultweapon

I assume one would want to make sure any ban included features that enhance a weapon’s lethality versus a feature that is “merely” cosmetic. Obviously, not a simple or easy thing to define.

High-Capacity Magazines:

The National Rifle Association (NRA) defines high-capacity magazine as “[an] inexact, non-technical term indicating a magazine holding more rounds than might be considered ‘average.’ Looking from a broad context, that is pretty accurate. A standard Glock 9mm may hold 13 bullets, but an expanded magazine holds about 30. Some assault weapons have magazines that can hold 100 or more rounds. Exactly how many bullets or rounds would “count” as high-capacity actually differs from state to state and jurisdiction to jurisdiction.

The Federal Assault Weapons Ban of 1994 defined high-capacity magazines as any holding more than ten rounds. It used the term a “large capacity ammunition feeding device.” Yes, it sounds quite awkward. Why is this such a critical definition and important to see included? Large capacity ammunition magazines are a common thread among almost all the mass shootings from the past few years (I know for sure it was a part of Aurora, Colorado;  Newtown, Connecticut; Tucson, Arizona, and now, Orlando, Florida).

STATE LAWS

The Federal Assault Weapons Ban ended in 2004, however seven states have created their own definitions and continued with banning of this class of firearms. Many of them list specific firearms by name, others use the features test similar to the one in the legislation. Of interest, half of them have incorporated a 1-feature test (the firearm only has to have ONE of the characteristics to be classified as an assault weapon).

Some have specifically done so to address the problem highlighted in the first image, that some weapons were not included even thought they had the same firepower (though it still wouldn’t capture the first shotgun). A 1-feature test casts a broader net. And because many modern assault-style weapons have increased flexibility and modular capabilities such as swappable/removable stocks, grips, guards, flash suppressors etc. the 1-feature test better addresses the modern world of firearms. Btw, those states are California, New York, Connecticut, and Washington DC.  Massachusetts, Hawaii, and Maryland all use a 2-feature test.

As I was reading about California, I came across this statement that was included in the law:

The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 30510 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. (California Penal Code Section 30.505(a)

For High-Capacity Magazines: California, Colorado, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey and New York all have high-capacity magazine bans. Most have the limit at 10 rounds with a couple (CO & NJ) at 15 rounds.

LEGAL CHALLENGES

Let me start with the “simpler” case of high-capacity magazines. California has a high-capacity magazine limit of 10 rounds, not dissimilar to the defunct Assault Weapons Ban. In 2013, there was a lawsuit Fyock v. Sunnyvale, to stop enforcement of the ban. In March 2015, the federal 9th Circuit Court of Appeals upheld the restriction, saying that it did not violate the Second Amendment.

Regarding the Assault Weapons Ban of 1994, in 2013, a Congressional Research Service (CRS) report said that the ban was challenged in the courts for violating, among other things, the Equal Protection Clause and the Commerce Clause and several other constitutional provisions. All of the challenges to the legislation failed. In addition, since District of Columbia v. Heller, cases that have evaluated the constitutionality of state assault weapons bans have generally found them to be valid under the Second Amendment.

As I was talking about California and its 1-feature test, I thought it would be pertinent to add that California courts rejected legal challenges to California’s assault weapons legislation. However, I did see that the case took place in 2000, BEFORE the Heller case, so should it come up again…

 

Thanks for staying with us here at Day in Washington. Things may not be moving quickly in Congress (See #NoBillNoBreak) but obviously there is a demand for change.

Opinion begins here: I must admit some significant disappointment that of all the legislation put forward in the wake of the Orlando massacre, the focus is on two areas: 1. Preventing suspected terrorists being able to buy weapons (such as those on FBI watchlists or the No-Fly list – which, it has been argued has some huge racism problems attached to it), and 2. expanding background checks (e.g.for online purchases).

Looking at the history of many of our mass shootings, particularly those in the past few years, I would question the effectiveness of solely pursuing these options. Racism, lack of effective implementation mechanisms, increased emphasis (and stigma) towards individuals with mental health conditions, side-stepping the lethality question of specific weapons…If we want real change, we need to not be so afraid to tackle the hard questions. And yes, this is hard, so if we’re going to legislate, lets do it right. No half-measures.  /Opinion

 

You can read Part 1 of our series here:

#DIW: What the #Disability Community (and Anyone Else) Should Know about Gun Control – Part 1 (A Breakdown of #Policy Basics and the Constitutional Question)

 

2 comments for “#DIW: What the #Disability Community Should Know about Gun Control – Part 2 (Definitions, 1-feature versus 2-feature tests, and high-capacity magazines)

  1. June 23, 2016 at 6:10 am

    Please note, this is my site, ergo, my rules. I ask that you be thoughtful in your responses, cite where possible, and be respectful. There are a lot of opinions and I try to be clear where my opinions are, but the emphasis is on clarifying what exactly legislation says. I reserve the right to delete any comments. Please see statement #1 for reference.

  2. Larry Goldberg
    June 23, 2016 at 7:36 am

    Thank you Day, this is so helpful, so clear and concise, so level-headed. We need more of these kinds of fact-laden articles on so many of the debates raging in Washington and throughout the country: Light without heat.

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