Liberal Law Prof: Sen. Feinstein's Gun Ban Full of Loopholes, Likely Unconstitutional, Hurts Gun Control

While much of the media reaction about Majority Leader Harry Reid's decision to scrap the assault weapons ban has been predictably shrill and overwrought, to its credit the Daily Beast ran an interesting analysis from a liberal law professor that argued that a) the Feinstein gun ban was easy to get around with all its loopholes b) might not pass muster in federal court given Supreme Court precedent and c) that the focus on a weapons ban had poisoned the well for liberal gun control advocates who might have had more success had they not pursued a gun ban that energized gun rights advocates to rally against it.

In his March 20 piece, UCLA constitutional law professor Adam Winkler -- who, by the way, supported the D.C. handgun ban in an amicus brief in the 2008 Heller case but argued against Chicago in the 2009 McDonald one-- groused that "gun-control advocates deserve a share of the blame for focusing on a symbolic proposal with little prospect of passage" (emphases mine):

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Gun-control advocates will no doubt mourn the demise of Feinstein’s assault-weapons proposal. Yet, they may soon be asking if the proposal lived too long—just long enough to dash hopes of enacting any meaningful reform.

Banning the sale of assault weapons was a bad idea from the start. These guns may be scary looking, but they are rarely used in criminal activity. While involved in a handful of high-profile mass shootings, including in Newtown, Connecticut, and Aurora, Colorado, these weapons aren’t a significant contributor to gun violence overall. Only a fraction of gun-related homicides every year are attributed to rifles of any kind; assault rifles make up a fraction of a fraction. And anyone looking to do maximum damage, like a deranged mass killer, can easily find other guns just as deadly. So even if the assault-weapons ban were enacted, it would not have a major impact on America’s daily death toll from guns.

Assault weapons are often misunderstood. Although many people mistakenly believe that these guns have automatic fire, that’s wrong. They aren’t machine guns, which are already heavily restricted and illegal to sell in most cases. The weapons primarily covered by Feinstein’s proposal, largely variants of the AR-15, fire only one round for each pull of the trigger. They are powerful—they are, after all rifles—but fire smaller rounds than many game-hunting rifles, which wouldn’t be affected by the assault-weapons ban.

One reason these guns are misunderstood is that there’s no set definition of “assault weapon.” The guns targeted by Feinstein’s proposal were mainly semiautomatic rifles with detachable magazines and one or more military-style characteristics, like a pistol grip or a folding butt stock. This wasn’t the same definition used by the prior federal law enacted in the Clinton years. That ban required two or more military-style features. One thing the two laws would have had in common, though, is the ability to be easily skirted by gun manufacturers. Just as with the old ban, gun makers would just make the exact same guns, only without the military characteristics. And sell them by the millions.

That’s what many gun-control advocates failed to realize about the assault-weapons ban: the same gun, with the same rate of fire, the same bullets, and the same detachable magazine, would be perfectly lawful. It’s as if the problem with “assault weapons” wasn’t their lethality but their pistol grips.

Even if enacted, Feinstein’s proposal would be the most likely of all the major gun reforms being considered in Washington today to be overturned on Second Amendment grounds. The Supreme Court has held that the Second Amendment protects arms that are “in common use” for lawful purposes, like self-defense. There seems little doubt that assault weapons are in common use, given the millions of them in circulation. Of course, the courts might still have upheld the ban; a federal appeals court recently said that outlawing this one category of firearm didn’t substantially interfere with anyone’s self-defense. Strangely, the best thing an assault-weapons ban would have going for it is its loopholes. Because you could buy the exact same gun without the pistol grip, you weren’t really denied the right to have a semiautomatic rifle to defend yourself.

There was one certain impact of proposing to ban the sale of assault weapons: it was guaranteed to stir gun-rights proponents to action. Ever since Obama was elected, they’ve been claiming that he wanted to ban guns. Gun-control advocates mocked this claim—then proposed to ban a gun. Not only that, the gun they were trying to ban happened to be the most popular rifle in America. It’s one thing to ban machine guns, which few law-abiding people ever wanted or used. It’s another thing entirely to ban a gun that millions of American gun enthusiasts love to shoot.

[...]

Had President Obama and Democratic senators focused all their energy and political capital on background checks, perhaps we’d be closer to enacting meaningful reform. There’s no doubt that the time spent on assault weapons, both in Senate committees and in public debate, wasn’t well invested. Indeed, long before Vice President Biden’s recommendations were issued in January, it was already clear that an assault-weapons ban had no chance of passing Congress. Now, three months after Newtown, the momentum for gun control has slowed, and the prospects for any reform’s enactment grow dim. That’s mainly due to the intransigence of the NRA and its allies. Yet gun-control advocates deserve a share of the blame for focusing on a symbolic proposal with little prospect of passage.

The assault-weapons ban may be effectively dead. The question now may be how much damage the proposal has done already to the gun-reform movement.

As I noted earlier, Winkler is no foe of gun control. In fact, in his 2011 book Gunfight: The Battle Over the Right to Bear Arms in America, Winkler's chief argument is that gun rights and gun control have gone hand-in-hand with each other since the founding of the Republic, and even earlier, into America's colonial experience.

But while you and I may disagree with his politics on the 2nd Amendment, his analysis of the politics of the gun control debate as excerpted above is pretty compelling and intellectually honest.

Perhaps that's why it's unlikely you'll see Winkler anytime soon on cable TV outlets to explain and defend what he wrote yesterday.