The Volokh Conspiracy

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Volokh Conspiracy

The First "Assault Weapon": Banning Guns Based on "Style" Rather than Function


When five schoolchildren were murdered at an elementary school in Stockton, California, in January 1989, the public learned a new phrase: "assault weapon." To most gun owners and non-owners alike, it was a brand new term.

It was also confusing. Whenever "assault weapon" laws have been enacted, they apply to guns that are not machine guns. Yet many people who support such laws think that the guns involved are machine guns.

We can trace the origin of the public confusion back to the Stockton crime. The criminal's murder weapon was a Norinco AKM-56S semi-automatic rifle. Norinco is a large Chinese manufacturer of many products, including military arms and equipment for natural resources extraction. The group has close ties to the Chinese military. "Norinco" is an abbreviation for China North Industries Group Corporation.

Because the firearm is made abroad, the importation of the rifle into the United States was allowed only because federal regulators found it to be "particularly suitable for or readily adaptable to sporting purposes." (18 U.S. Code sect. 925(d)) (Attorney General "shall authorize" imports of firearms that meet the definition.)

The initials "AKM" stand for "Avtomat Kalashnikova modernizirovanniy." Translated from Russian: "Modernized Automatic Kalashnikov." In 1947, Russian inventor Mikhail Kalashnikov created one of the world's best-known automatic rifles: the AK-47. The type 56 was a model that began production in China in 1956. Over the years, China has distributed this automatic military gun to many military allies, guerillas, and terrorist groups.

Automatic weapons are generally not importable into the United States for sale to citizens. (18 U.S. Code sect. 925(d)). In an automatic weapon, when the user presses the trigger, bullets are fired continually. Popularly, automatics are called "machine guns," and that is the term used by the federal statute that very strictly regulates them, the National Firearms Act of 1934 (26 U.S. Code sect. 5801 et seq.).

For the sporting purpose of hunting, machine guns are generally unsuitable. Humane taking of an animal is supposed to involve a single precisely aimed shot, and sometimes a quick second shot. Spraying bullets at the animal is forbidden.

To make the gun importable into the U.S. for civilian sale, Norinco had to change the gun's internal operation. Instead of being an automatic, the gun had to be a semi­-automatic. In a semiautomatic, pressing the trigger fires only one bullet. This is just like every other normal gun, such as revolvers, bolt actions, lever actions, or pump actions.

After a bullet is fired, the empty cartridge case is left behind in the firing chamber. (The case had contained the bullet, primer, and gunpowder.) In a semiautomatic, some of the energy from the gunpowder burning is used to: 1. eject the empty case from the firing chamber, and 2. load a fresh cartridge into the firing chamber. Then the user has to pull the trigger to fire a shot. One trigger pull, only one shot.

Semiautomatics were invented in 1885. Today, they constitute the very large majority of American handguns, and a large fraction of rifles and shotguns.

When Norinco altered its model 56 to be semiautomatic only, the new model was the 56S. Changing the automatic model 56 into the semiautomatic 56S made a huge difference in operation and in law.

The U.S. Supreme Court in the 1994 case Staples v. United States sharply distinguished automatics from semiautomatics. According to the Court, there are some weapons whose ownership has a "quasi-suspect character." Examples, according to the court, are grenades or machine guns. In contrast, semi­-automatic guns have always been "commonplace and generally available," said the Court. The Staples case was about an AR-15 semiautomatic rifle, and the point applies to semiautomatics generally.

(By the way, "AR" stands for "ArmaLite," the company that invented the rifle. The "AR-17" is a shotgun, and the "AR-24" is a handgun.)

Thus, when the automatic Norinco 56 was turned into the semiautomatic 56S, it had a very different legal status. The change also made practical difference. An automatic gun can fire much faster than a semiautomatic.

However, the internal mechanical changes to the 56S made almost no difference in the rifle's outer appearance. On the outside, the Model 56 and the Model 56S looked exactly alike, except that the former has a selector switch, allowing the user to choose automatic fire.

So it was understandable that most people who saw an AKM-56S for the first time would immediately think it was an AK-47. The AK-47 is a very famous gun, and the AKM-56S looks the same, unless a person is looking very closely and knows what to look for. Because of internal parts, the AK-47 can fire much faster than the AKM-56S. But in outer appearance, there is essentially no difference between the two guns.

Most Americans thinks that machine guns should be banned or very strictly regulated. They distinguish machine guns from normal guns, which fire only one shot at a time. A gun with the appearance of the 56S was bound to cause confusion.

This confusion could help advance gun control. In 1988, gun prohibition strategist Josh Sugarmann wrote that the public and press had grown tired of the handgun ban issue. He urged a shift of "assault weapons," and explained why "assault weapon" bans had a better chance of being enacted than handgun bans:

The weapons' menacing looks, coupled with the public's confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons.

Sugarmann was exactly right.

As soon as the media began covering the Stockton crime, the vast majority began calling the criminal's gun an "AK-47." Even today, this misinformation persists.

In 1989, most Americans were dependent on the mainstream media for all their news. So they believed media reports that AK-47 rifles were for sale over the counter in gun stores all over the United States. Understandably, they favored greater restrictions on whatever guns the media was talking about.

In 1989–'90, public opinion polls showed support for "assault weapon" bans at 3:1 or 4:1 in favor. In recent years, the issue has become closer to an even split, with ban support often under 50%, and sometimes lower than opposition to the ban.

The change is because a large number of Americans (perhaps about a quarter or a third) over the last three decades have learned what the "assault weapon" ban is about. It does not involve the AK-47, or any other machine gun. Instead, it involves guns that operate exactly the same as the predominant type of ordinary handgun.

Still, there are many Americans who have not learned the difference. People who have little or no personal experience in using firearms are especially vulnerable to deception. Some media figures, politicians, and commentators continue to perpetuate misinformation.

Confusion was inevitable in February 1989, when the "assault weapon" issue was brand new. Three decades later, some public officials and media continue to speak inaccurately. So-called "assault weapons" are not machine guns. Bans on guns that have a military "style" are based on the appearance of firearms, and not their function.