The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Gun rights supporters often point out that so-called assault weapons that some people seek to ban aren't materially different from other guns that will remain allowed. I think that's factually right (and some pro-gun-control liberals, such as my colleague Adam Winkler, agree).
Assault weapons aren't fully automatic; they are semiautomatics, like many tens of millions of other guns out there. They aren't unusually powerful—"assault rifles" are generally more powerful than handguns, because generally rifles are more powerful than handguns, but many ordinary hunting rifles (such as a .30-06) are more powerful than many assault weapons (such as the .223s that were used in the San Bernardino, Calif., shooting). The features that are often used to distinguish them, such as bayonet lugs, barrel shrouds, and pistol grips, don't actually make them materially deadlier. (Magazine size may be relevant to deadliness, though it's not clear that magazine size limits are a good idea; but in any event, magazine capacity is a separate matter from assault weapons bans as such, since large magazines can fit all sorts of guns.)
But, some say, if assault weapons are so similar to other guns, what's the big deal about banning them? Just like the minority of criminals that uses assault weapons can switch to the other guns (an argument that the bans will be futile), so law-abiding citizens can do the same (an argument that the bans won't harm lawful self-defense). Why get so upset about it?
Let me offer a few explanations for why gun rights supporters are indeed so worried—you can agree with them or disagree with them, but I hope you at least conclude that they are plausible.
1. To begin with, some gun rights supporters just think that people should be free to choose what devices they own—whether self-defense devices or any other devices—unless there's a very strong reason for restricting that liberty. If you think that a ban would save thousands of lives, that may qualify as a strong reason; but if you think that a ban would be ineffectual, then you can oppose it on basic liberty grounds.
2. Beyond this, as I've noted over the last two days—see the Violence Policy Center post and the Charles Krauthammer post—some supporters of gun bans have argued in favor of assault weapons bans precisely because they can help lead to broader bans (such as bans on handguns). If some of your opponents think a restriction is good because it will lead to something much broader, you might be forgiven for taking them at their word.
3. Moreover, consider the political question as dynamic, rather than static. People are worried about mass shootings, or street crime, or whatever else. Many people say, "We've got to do something—let's ban assault weapons." Critics argue, "Assault weapons bans won't do any good." The response: "We've got to do something!" And then an assault weapons ban is enacted.
But mass shootings will keep on happening. Even assault weapons ban supporters agree with that; many mass shooters already use guns other than assault weapons, and even those who prefer those weapons will either keep getting them or will switch to other, comparably deadly, weapons. Assault weapons ban supporters believe that assault weapons bans will do a bit of good, not that they'll eliminate or even vastly reduce mass shooting deaths. Assault weapons ban opponents believe the bans won't reduce mass shooting deaths at all. No-one thinks the bans will solve the mass shooting problem.
So then what will people say? "We've got to do something—let's ban [whatever guns are being used now instead of assault weapons]." Critics argue, "Such a ban won't do any good." The response: "We've got to do something—and we as a country have already decided, with the assault weapons ban, that we should try to deal with gun crime by banning various classes of guns." After all, the argument will go, we're not quitters; we've embarked on a path of trying to save lives by banning guns; whether or not one ban works, let's try another and then another until we find something that does.
That's the way democratic politics so often works; not in every instance, to be sure, but often enough. When a law is adopted, many people accept that it's right, and use it as a basis for arguments by analogy. If it doesn't seem to be working, many people don't want to quit; they just want to try more and harder. (Consider, among other things, the first decades of the war on drugs.) Arguments against the first law often don't work quite as well against the second and third—once the basic principle is established, further debate just seems like "haggling over the price." And once "don't just stand there, do something" (even when the something doesn't seem very likely to work) is accepted as the right approach, it tends to lead to doing something else and then something more.
And this is especially worrisome to gun rights supporters precisely because the case for banning assault weapons seems so factually weak to them. If the precedent established is that we ban weapons that really are very different from ordinary guns (e.g., antiaircraft missiles), precisely because we have reason to think that they are vastly deadlier than the alternatives, then that's not a precedent that's likely to lead to many bans on ordinary guns. But if the precedent is for banning guns that are very similar to other ordinary guns, surely it's reasonable to worry that other ordinary guns will be next in line.
4. Of course, if you disagree on the facts, and think that assault weapons really are materially more dangerous than other guns that would remain allowed, you can argue that assault weapons bans will save many lives and are worth the risk of setting a bad precedent. It's just that gun rights supporters generally don't share your view of the facts, and have a plausible argument for that factual perspective.
And, of course, if you think that other ordinary guns should be banned, then it makes sense for you try to ban assault weapons (as the Violence Policy Center and Krauthammer argued). Just don't fault gun rights supporters for "paranoia" when the thing they fear is the very thing you're trying to accomplish.