Missing the target? What you may not know about the complicated issue of gun control
Gun control is high on the radar of communities and courts and deserves a deeper look at the issues surrounding this volatile subject. In this post, you’ll find some of my research and observations in light of the new gun control case, Miller v. Bonta, in which U.S. District Court Judge Roger T. Benitez held California’s “assault weapons” ban unconstitutional under the Second Amendment.
In dual postings on both Second Thoughts, the blog of Duke’s Center for Firearms Law (CFL), and on Lawfire®, CFL’s Jake Charles first unpacked the 94-page decision (here), and then analyzed it (here). In this third installment, I’m going to share some of my thoughts about the case and some data you may not have seen.
I’ve written about gun control on Lawfire® a number of times. In 2017 I wrote a post “Be wary of treating gun violence like international terrorism: different problems require different solutions.” As the title suggests, I cautioned against using counterterrorism techniques honed in overseas conflicts like Iraq and Afghanistan against suspects here at home.
I did agree we needed to do more to stem gun violence, and cited outlawing of “bump stocks” and the repeal of the “Dickey Amendment” so as to remove the murkiness regarding the legality of using Federal dollars for more research about gun violence, as examples of things that should be done.
In 2019, I wrote “Countering the threat of mass shootings: can military theory help?” in which I offered ideas as to how the terrible problem of mass shootings might be addressed. Essentially, my argument was that a number of seemingly minor actions which individually may not have much impact might nevertheless, collectively, do some good.
United States v. Miller
But my interest in gun control goes back much longer. In 1995 I wrote an article for the Tennessee Law Review entitled “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment.”
At the time, the 1939 case of United States v. Miller, was the Supreme Court’s seminal case. Its primary holding was that “only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.”
I had essentially concluded that the Founders intended the Second Amendment to create a national security architecture that would substitute sizeable state militias for the need to maintain a large standing army (which, they feared, could be a source of oppression). The militias would also provide the states with a military force capable of countering a tyrannical central government.
However, because the nature of military power had changed so significantly since the Constitution was written, I argued that it was no longer realistic to think a collection of civilians armed with personal weapons could successfully dislodge a determined and heavily-armed professional military (and, yes, I did address the insurgencies around the world that seemed to have defeated modern militaries).
Consequently, I thought it reasonable that this changed circumstance regarding the military efficacy of a militia would allow the courts to more readily approve gun control measures.
District of Columbia v. Heller
However, more than a dozen years later in the 2008 case of the District of Columbia v. Heller, the Supreme Court held, as Justia put it, that “[p]rivate citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia.”
Heller involved a handgun, while the new case of Miller v. Bonta involves California’s effort to ban what are called “assault” rifles. So, the issue in the current case was whether or not a ban on “assault” rifles like the AR-15 unconstitutionally infringes upon Second Amendment rights. Judge Benitez found it did.
Although I agree with much of Jake’s critique of the Benitez’s opinion, I believe the ultimate holding was the correct one given the current state of the law.
Let’s unpack the facts a bit more.
Privately-owned firearms in the US and their lethality
There are about 400 million privately-owned guns in the U.S., of which as many as 20 million are labelled by some as “assault rifles.” Forbes said in March that “guns like the AR-15 have become extremely popular among enthusiasts who favor their versatility and limited recoil.”
Rifles of all kinds – not just AR-15s – are known to have been involved in 364 of the 13,927 homicides in the U.S. in 2019 (the most recent year for which statistics are available) or about 2% of homicides (this could be higher as there are cases in which the type of firearm is not known, and other sources put the percentage at 4%).
In August 2019, the Pew Research Center reported that “the number of gun murders remained far below the peak in 1993, when there were 18,253 gun homicides – and when overall violent crime levels in the U.S. were much higher than they are today.”
Moreover, suicides – not murders – account for most firearm deaths (about 60%). Further, handguns, not rifles of any kind, were the weapon of choice in suicides by firearm: in 77% of the cases where a firearm was the method of suicide, the weapon was a handgun.
According to the Centers for Disease Control, the total number of firearm deaths (39,707) in 2019 was slightly greater than motor vehicle deaths (37,595), but trailed substantially the number of deaths from, for example, poisoning (75,797) and other causes that contribute to the total number of deaths from injuries of some kind (246,041). As a point of reference, opioid-related overdoses killed about 50,000 Americans that year.
The AR-15 isn’t really an “assault weapon” in a military sense
Although an AR-15 has a fearsome appearance that mimics the look of military weapons, it really isn’t an “assault weapon” that a serious military would use.
As the case (and Jake) explain, the AR-15 is a semi-automatic rifle, that is, you have to pull the trigger each time to fire it. Though the California statute discussed in the Bonta case listed other factors that could make a rifle an “assault weapon,” I don’t know any significant military force that would use it for that purpose.
Despite its resemblance to the U.S. military’s M-16, the AR-15 doesn’t have a fully automatic mode, or even a three-round burst capability that soldiers assaulting an objective might need to use, for example, to lay down suppressive fire. Even the Pope’s Swiss Guards have fully-automatic ‘machine guns’ in their inventory.
However, the formidable “look” of the AR-15, and the popular (if inaccurate) narrative about it, may be an important reason it could make an effective home defense weapon. People may feel more secure in their homes with it, and criminals and other threats may be deterred from taking on someone bearing it.
The threat of mass shootings
What about the relationship between the AR-15 and mass shootings? A just-updated (April 15, 2021) RAND report notes the unsettled definition of “mass shootings” but finds they are, despite media hyping, relatively rare:
These mass public shootings are rare events—they constitute less than 15 percent of all mass killings in the United States and are responsible for less than 0.5 percent of all homicides—but they have far-reaching impacts on citizens’ mental health, anxiety, and perceptions of safety.” (Emphasis added; citations omitted).
Interestingly, Rand also says:
Of note, a study of 106 perpetrators of mass public shootings in the United States between 1990 and 2014 found that less than 5 percent of offenders had a history of involuntary commitment or adjudication of dangerousness that would have prohibited them from purchasing a firearm following the federal mental health background check. Although most research supports that, overall, people with serious mental illness are overrepresented among mass public shooters, this does not imply that serious mental illness causes mass shootings, just as we cannot conclude that being a young man causes mass shootings. (Emphasis added; citations omitted.)
“[H]andguns are the firearm most commonly involved in active shootings and mass shootings; semiautomatic rifles or “assault-style” weapons are used in an estimated 10 to 36 percent of active shootings and mass shootings. The use of large-capacity magazines (LCMs) is more common in mass public shootings and high-fatality mass shooting incidents than it is in firearm crimes overall. (Emphasis added; citations omitted.)
Other reports say AR-15s were used in 11 mass shootings since 2012 but, as USA Today notes, “the lack of context [for the claim] could lead a reader to believe that the shooters in all incidents listed only used an AR-15, when in several cases they had multiple guns — including 23 in the case of the Las Vegas gunman.”
Lethality of handguns Heller permits
It is also a mistake to think that handguns necessarily have less lethal potential as a means of mass murder than the AR-15. In a 2009 article Slate magazine examined how Maj. Nidal Hasan managed to fire 100 rounds in seven minutes in gunning down 13 people at Ft. Hood, TX, using a handgun with a magazine of just 20 rounds. Slate found that a “novice can fire three shots in less than a second, and a trained shooter can double that.” The article added:
“Experts holster extra ammunition on the side of their nonshooting hand to speed the exchange and can have the new magazine loaded before the empty one hits the ground. So each 20-round magazine would take no more than 5.3 seconds, including time to reload. That means you could fire off 1,575 shots in seven minutes—provided you were carrying 79 magazines on your person.”
This aligns with a key reason why the Washington Post concluded that “banning AR-15s and other assault weapons won’t stop mass shootings.” It explained:
“[An expert] makes an important point about what probably happened during the ban: Mass shooters can rather “easily” come up with “alternate means of mass casualty if that were necessary.”
In other words, if they can’t get an AR-15, they get a Glock. And that’s the problem, experts say, of hoping that a ban on assault weapons will stop mass shootings. It’s not really about the gun.”
A quest for security seems to be spurring a growing number of gun purchases
America is in the midst of an unprecedented gun-buying spree. The Washington Post reported this February that “[m]ore than 2 million firearms were bought” in January, “80 percent year-over-year spike and the third-highest one-month total on record.”
What makes that especially significant is that the “surge is in line with the record pace set in 2020: Nearly 23 million firearms were bought, representing a 64 percent jump year over year.”
In 2019 Gallup found that 63% of those who owned guns choose to do so for “personal safety/protection.” This seems to be consistent with the current surge in gun purchases.
Specifically, the Washington Post article from February cited a number of reasons for the rise in sales, including the investment potential of firearms. However, most relevant to our discussion, it quoted firearms expert Steven Dulan as follows:
“Far more common, he said, are the reports from first-time buyers who say they no longer trust police departments to protect them, especially after some agencies were overwhelmed by protesters during the summer.
“The folks that said they would never become a gun owner were trusting the police to protect them, and that delusion has been dispelled,” he said. (Emphasis added.)
There is a real basis for concern about public safety these days. Just about a week ago, the headline of a New York Times article said it all: “With Homicides Rising, Cities Brace for a Violent Summer.” The Times cited criminologists for the figures that show “homicides rates in large cities were up more than 30 percent on average last year, and up another 24 percent for the beginning of this year.” Experts expect the violence to continue.
Why do people want the AR-15?
My sense is that many people may want the AR-15 for the same reason cops do; that is, because they want to be better armed than criminals and other threats to their personal safety and that of their families.
Much of this could be traceable to a 1997 incident where two heavily-armed bank robbers sheathed in Kevlar vests tried to shoot their way out of a police encirclement with AK-47s, true “assault weapons” that completely outgunned the responding law enforcement personnel.
CNN reports that the robbers fired “armor-piercing bullets that tore through cement, buildings and cars, spraying shredded fragments of glass, metal and concrete as they went.” They wounded 20 people before being killed themselves after police went to a local “gun shop to borrow high-powered rifles.”
In a real way, this changed policing in this country, as CNN points out:
“The Battle of North Hollywood,” as it came to be known, would change how routine police patrol officers are armed in Los Angeles and beyond.
“Our units carry AR-15s now,” Capt. Johnny Starling of the California Highway Patrol West Valley division. “We don’t have to confront suspects as close instantly. Even our patrol cars have Kevlar side panels. Before they were made of sheet metal that couldn’t stop bullets.”
Police departments across the country are better equipped today as a result of the shootout, Burbank Police chief Scott LaChasse said. “We carry urban police rifles now,” he said. “We can deploy much differently because of that. You now have the firepower so you can take suspects down at a distance.”
A 2014 Small Wars Journal article by two Los Angeles police officer discussing the militarization of police adds some additional perspective:
“Today’s police officer, indeed the post-911 police officer, has not only to be the Norman Rockwell notion of police officer, but a police officer who can adapt to irregular, well trained, very well armed, unconventional threats who are willing to bring about extreme violence, killing as many people as possible, and die in furtherance of their objective.
The criminals that necessitate the use of military-style weapons and tactics by police are not your every day, run-of-the-mill, criminal offenders. They are trained in military-style tactics and armed accordingly, dedicated, ruthless and potentially fanatical. They are the drug cartels, the violent extremists and the transnational adversaries such as the hyper-violent ISIL and al- Qaeda – both of which have vowed to conduct future attacks on American soil.” (Citations omitted).
The officers recognize that such events are “black swans” – events that fall outside of the experience range of the typical patrol officer and are characterized as “low frequency, high consequence events.” Consider this analogy about “low frequency, high consequence events”: while very few people will ever have occasion to use a fire extinguisher, when it is needed, it’s really needed.
Thus, I would not say it is irrational for civilians to conclude that if AR-15s are what cops think are necessary to counter today’s criminal and terrorist threat, then they too need them, especially in an era when “[p]olice departments [are] understaffed in major cities amid rise in crime” and the public could understandably fear police may not be available when they need them.
The Founders and “assault weapons” in the home
It also isn’t quite right, in my view anyway, to say that the Founding Fathers would have never anticipated individuals having assault weapons in their homes. The Militia Act of 1792 required “every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt…”
Actually, a musket with a bayonet affixed (and they were 17 inches long!) was the “assault weapon” of the day. A historian describes the effect of it during the Revolution:
“In the early part of the Revolutionary War, almost no weapon struck more fear into American soldiers’ hearts than the British bayonet. To be standing with a fellow militiaman and citizen soldier, and watching the precisely-marching solid line of red coats coming toward you in lockstep to a drum beat was unnerving enough. But mounted to the front of each British musket was a very long, triangular knife gleaming in the sunshine. Americans weren’t as familiar with bayonet use as their British opponents and most American flintlock muskets didn’t have them.”
However, that changed when the French provided the Americans with bayonets, and soon the Continental Army became accustomed to them. In fact, the climactic battle at Yorktown featured successful American musket-cum-bayonet assaults on two key British redoubts that led to victory.
I am a supporter of the Second Amendment, but many of Jake’s criticisms of Judge Benitez’s opinion resonated with me. For example, I do think the opinion could have used a good editor as at times it seems more like a draft than a final version.
I also mostly agree with Jake’s critique of the so-called “common use” test Judge Benitez suggests. Jake rhetorically asks “[a]s a normative matter, why would the government’s regulatory authority be contingent on weapon popularity?” Of course, mere popularity should not alone bar government regulation of a weapon or anything else.
Furthermore, I am skeptical of the “militia” rationale for private firearm possession raised by Judge Benitez’s opinion. It is true that most males from age 17 through 45 are (unwittingly, I suspect!) members of the “unorganized militia” of the United States, but expecting them to arm themselves as the Founders might have required is neither militarily necessary nor especially wise.
I do, however, think an AR-15 rifle can have a bona fide “home defense” use, particularly given contemporary circumstances. We are living in an era when “[m]ore Americans now say violent crime is a ‘very big problem’ than say the same about COVID-19.”
Additionally, as I said above, people may perceive they cannot depend upon the police being there when they need them. Law enforcement recruiting has been in trouble for years. What had been an eight-year trend in understaffing of police departments has now become a full-blown crisis. According to Forbes:
“Many of the cities impacted by months of racial justice protests and policing reform efforts are now struggling with a historic departure of police officers, according to new data released by the departments, leaving some concerned about how they will protect their communities going forward.”
To be clear, I don’t encourage people to try to be their own police officer. Personally, I worry that many civilians would not be able to effectively and lawfully use a firearm in a high-stress, home-defense situation.
Furthermore, it is important to appreciate that the Second Amendment doesn’t create a right to have every type of firearm (or other kind of weapon). Finally, as I discussed in my earlier post, I believe there are various steps short of a weapons’ ban that could mitigate the risk occasioned by firearms of all kinds.
Yet American do deserve to feel safe in their own homes, and the Supreme Court has made it clear in Heller that they have a right to firearms to help achieve that sense of security. In my view, a firearm many police say their patrol officers need routinely available for contingencies that can arise in day-to-day law enforcement, would seem to be the sort of home defense weapon that would be consistent with the Supreme Court’s opinion in Heller.
Consequently, I believe California’s ban on semi-automatic rifles, at least as it applies to those used for home defense, impermissibly infringes upon the Second Amendment.
Still, remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!