Open letter to Senator Kay Bailey Hutchison
1 May 2008
Senator Kay Bailey Hutchison
284 Russell Senate Office Building
Washington, DC 20510-4304
Senator Hutchison -
First, thank you for your service to our state and the many sensible positions you hold (and for which you continue to be re-elected) in representing us to the federal government. Thank you especially for joining the other Senators & Congressmen in signing the amicus brief for D.C. v. Heller, argued in the Supreme Court last month.
However, in your comments at a Heritage Foundation event on February 7 covering that amicus brief, you made some comments that should be addressed and corrected.
In the Q&A session [just before the 35-minute mark - JT], when asked by a Dallas reporter your position on the "Assault Weapons Ban", you stated that you supported it, for the reason that a regulation of its kind was analogous to those regulating shouting "fire!" in a theater. You reasoned that both regulations clarify that there's a category of action under a Constitutional right that's deemed to be separate and distinct from the basic right (of speech or keeping & bearing arms), that we restrict in order to protect the public from harm by those who would "abuse" that right.
There are two important facets to that approach to regulation: whether the concept makes sense in general, and whether its specific applications are successful. Conceptually, the idea is to very specifically restrict certain actions that would normally be protected by a guaranteed Constitutional right, but in certain and specific cases where that action would cause harm through malicious abuse. Sounds reasonable. So we restrict the shouting of "fire" in a theater, and as a result we don't have people being trampled trying to get out of a theater that's not on fire. But notice that we don't restrict the shouting of "fire" in an open-air park, nor the act of shouting, nor the ownership of a loud voice.
For the same reasonableness & effectiveness to apply to a ban on a particular class of firearm, the regulation should have to jump through the same hoops. Where the free speech regulation restricted the joining of several elements which are normally, taken separately, unrestricted - being in a theater, shouting, speaking "fire" - what confluence of elements did the "Assault Weapons Ban" restrict, that when taken separately are unrestricted but when joined create a situation that puts the public in greater jeopardy than it would be without?
Did it restrict firing rates? No, the 1934 National Firearms Act and 1986 Firearm Owners Protection Act were already in place, restricting fully-automatic machineguns. Similarly, semi-automatic (one bullet per one trigger pull) weapons were as available during the life of the 1994 federal law as they were before and after, so the law didn't even mandate a backwards step to bolt-action or otherwise "single-action" (manually cycle between each shot to load a new round) firearms. Firing rates remained unchanged by the "Assault Weapons Ban".
Did it restrict the use of more powerful ammunition that can cause relatively "more" damage to a target than one might use for home defense? No, the 1994 federal law didn't affect the availability of any particular type of ammunition, from common hunting calibers like .223 and .308 to the less frequently-used .50 caliber. Any regulations on special "armor piercing" ammunition and the like, reserved for law enforcement, were already on the books and were not mentioned by the 1994 federal law.
Did it restrict smaller, more concealable pistols that could conceivably be snuck into crowded places by those with nefarious intent? No, and in fact, during the 20-year period from 1986 to 2006, states in a sweeping trend were passing liberalized concealed handgun laws that allowed law-abiding citizens to carry their small, concealable pistols in public for self-defense - the number of states with such "shall-issue" laws grew from 9 to 39 in that span, which included the period of the 1994 federal law.
Did it restrict silencers that could conceivably be used by shooters to hide their location and evade capture? No, restrictions on silencers were included in the aforementioned 1934 NFA, and the 1994 federal law didn't mention them at all.
So what did the "Assault Weapons Ban" really restrict in order to protect the public from harm by those who would abuse the right to arms guaranteed by the Second Amendment? It banned the manufacture and sale of certain models that had two or more of the following features, considered by most to be merely cosmetic:
- pistol grip
- folding/collapsible stock
- flash suppressor/muzzle brake
- "large-capacity" detachable magazine
- bayonet mounting point
- grenade launcher mounting point
In short, the 1994 federal law restricted a very specific class of weapons that 1) were not appreciably more effective in killing people than those firearms that were left unrestricted are, and 2) were used in a very small percentage of crime to begin with, even pre-1994 (estimates ranged from 2% to 8%). Those two facts contribute directly to the fact that the ban didn't appreciably affect the crime rate during its 10-year period, as concluded by separate DOJ and CDC studies.
So hopefully you can see, Senator Hutchison, that the 1994 "Assault Weapons Ban" did absolutely nothing to "protect the public from harm by those who would abuse" an otherwise Constitutionally-protected right. The terms of the ban didn't make any sense conceptually, and so it's no surprise that the application of the ban wasn't successful either. If, in your remarks at the Heritage Foundation, you were specifically speaking about those restrictions placed on fully-automatic machineguns, armor-piercing ammunition, and silencers and the like, well, that's a completely different conversation, and has nothing to do with the now-defunct 1994 "Assault Weapons Ban".
Again, I applaud your decision to support the defendant, Dick Heller, with the amicus brief signed by your colleagues, and thank you for your efforts in that regard. I do however encourage you to correct the impression you have about the merits and effectiveness of the "Assault Weapons Ban" that, at the end of the day, was decried by both sides of the gun control debate as being a useless piece of poorly-thought-out and ineffective legislation.
Hat tip: JR