Anyone who’s studied the literature knows that “assault weapons bans” have no rational basis. They depend on an emotional appeal that requires a profound ignorance of the facts of crime statistics and weapons technology. They also require a media that benefits from promoting mass murder for ratings and political gain. Clayton Cramer exposes the irrationality of “assault weapon” bans in his paper Assault Weapon Bans: Can They Survive Rational Basis Scrutiny? . . .

Clayton Cramer does excellent work in the paper. He puts the facts and statistics in a logical order that’s irrefutable. From the paper:

While most AW bans also have functional definitions of the banned weapons, named list definitions based on manufacturer’s name and model number are a common part of these laws. These are similar to “bills of attainder,” in which legislative acts punish persons by name for alleged crimes instead of specifying a crime and allowing due process by the courts to determine guilt.

While Colt Industries is not a person, and Colt’s AR-15 is not a person, it is clear that a law banning sale of a named product made by Colt, with no similar ban on sales by another manufacturer would effectively deny Colt equal protection of the law. To make these distinctions in an arbitrary manner is contrary to existing case law.

Not only does the named list approach lead to equal protection problems, but it makes it very easy to subvert these laws. As an example of the defective nature of named lists, California’s Assault Weapons Control Act (AWCA) banned the Intratec  TEC-9 by name. The manufacturer responded by making minor non-functional changes to the gun and giving it a new model number: DC914 (presumably “Designed for California”).

The TEC-9 and TEC-DC9 are otherwise identical.” When the 1994 federal ban took effect listing the TEC-9: “Intratec… manufactured an AB-10 (‘after ban’) model that does not have a threaded barrel or a barrel shroud but is identical to the TEC-9 in other respects, including the ability to accept an ammunition magazine outside the pistol grip.” While the federal AW ban prohibited new manufacture of 32 round magazines, ones made before the new law work in the AB-10.

Cramer only touches the political strategy that motivates the bans. His remarks on the politics involved are clear and correct. But an analysis of the motivations of the politicians involved, and the power structures that allow for the courts to uphold these clearly irrational laws, are beyond the scope of this academic paper.

Gradually, slowly, large numbers of otherwise uninformed people are becoming informed. Once informed on the topic, they stay informed. That’s why the numbers of people opposed to more infringements on the Second Amendment has been growing for 50 years. Use the information in this paper to inform others.

©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
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46 Responses to Paper: “Assault Weapon Bans” Have No Rational Basis

  1. The main thing that these malum prohibitum acts do is demonstrate their inherent stupidity. A few years back, I think a fair number of ordinarily law-abiding gun owners would refer to themselves as, in fact, “law abiding” gun gun owners. As the stupidity increases, I think many of us recognize this stupidity and are inclined to just ignore laws that are far outside the realm of sensibility. For example, those of us residing in Washington State are disinclined to obey recent legislation that requires a background check to let our shooting buddy run a couple of rounds though one of our guns out at the range. particularly when the law enforcement officers have already stated they have no intention of enforcing these laws.

    Instead of cracking down on illegal gun transactions, the real effect of these laws is to take fine, upstanding citizens who happen to own guns, and make them decide whether to obey the letter of the law, or to say, “Screw it.” And once you’ve crossed that line, where do you decide to begin following the law? Are you really going to throw away perfectly good gun parts to make sure your AK build is 922(r) compliant, particularly when you’ve never heard of a prosection? How difficult is it to ignore NFA requirements to build an SBR or suppressor? Is a lightning link that difficult to fabricate without government permission?

    When you pass trivial laws, how long is it before the citizenry regards all laws as trivial?

    • Unfortunately, I believe that is the intent of trivial laws. To make criminals out of undesirables. Maybe the cops have no interest in your ak build now, but a little change in the political spectrum and your ak may be a convenient way to get you out of the way of the goals of a more oppressive regime.

      • You’re both right. This is why I no longer use “law-abiding gun owner,” nor do I think of myself in those terms.

        I’m a peaceful, responsible gun owner.

        I can continue being peaceful and responsible even in defiance of stupid, pointless laws; in fact, sometimes ignoring a harmful rule is the most responsible thing to do.

        And when people bring up stupid laws like Washington state’s UBC scheme or start harping about the necessity for gun-free zones, I can say “Really? That’s what you want to do to peaceful, responsible people? Because law-abiding people will probably go along with it. But tell me…will violent, irresponsible criminals obey this law? Or are you maybe punishing the wrong people?”

        • The real problem is the “uniformed” law-abiding people, those who still read the paper and watch the mainstream media on TV. Those are the people that are truly brainwashed by the establishment. Sure, they are law abiding, but they are also wholly ignorant of the truth. That’s why Hildabeast keeps repeating her tired ass lies and for the most part, gets away with it. 50% of people believe that gun crimes are at epic proportions when just the opposite is true. I notice now that the paper reports just about every little shooting anywhere in the nation. They didn’t used to do that. They media cartel has to keep the anti-gun oil lamp burning. They can’t let it get forgotten.

          It’s everyone’s job who knows better and sees through the lies of the media cartel to educated your neighbors, friends and relatives. Spread the word as they say. To the gun grabbers, a simple FO&D works, but for those who are still being victimized by the media machine / cartel, EDUCATE.

        • Nice.

          “Peaceful, responsible” is brilliant. Im gonna steal that & use “otherwise law-abiding” to call out criminalization by other means.

          That’s way better. Thanks.

        • “Nice.

          “Peaceful, responsible” is brilliant. Im gonna steal that & use “otherwise law-abiding” to call out criminalization by other means.

          That’s way better. Thanks.

          Agreed.

          “Responsible” should equal “law abiding,” of course. The necessity for this shift in language is another indicator of how far from rational basis our legal institution has gone.

    • Politicians take themselves far more seriously than does the general public. The result is that they pass laws that the public more or less ignores. The assault weapons ban was just one example. A few others are prohibition, the war on drugs and the 55 mph national speed limit. The last one was of particular significance to me since I finished school, started earning an actual income and could finally afford a decent car just as 55 took effect.

      55 was what started my questioning the common sense of government officials. The mantra is always the same. It’s safe to drive the speed limit but highly dangerous to exceed it by even a few miles per hour. The problem was that it was applied, on the same stretch of road, to 75 mph (where I lived), then 55 mph, followed by 65 mph and 75 mph again. Several western states now have 80 mph interstate limits and Texas has a stretch of 85 mph. The inconsistency prompted me to ask, “Which time were they lying to me?”

      Two things prejudiced me against Hillary long ago. The more recent one came two or three years ago when gasoline prices rose to $4 or $5 per gallon. She proposed reinstituting the 55 mph national speed limit. The other was her utter lack of sympathy for marginally profitable small businesses that would have been bankrupted by HillaryCare.

      • Although it did reduce highway fatalities, the 55MPH speed limit law was enacted during the OPEC oil crisis primarily as a way of reducing gas consumption (and in fact driving 55 does result in a higher mpg than driving faster), not out of a concern for highway safety.

        • (and in fact driving 55 does result in a higher mpg than driving faster),
          Depends on the vehicle. Aerodynamic drag does not heavily kick in until 65 or 70 mph.

        • I always heard that around 60 mph, the airflow around any vehicle goes from laminar to turbulent, greatly increasing drag.

        • The 55mph speed limit was also the modern inflection point in federal legislation by other means by “just” refusing to “share” funds if local or state govt don’t comply with the federal preference.

          That was Carter, when he didn’t get his way through the front door, and he/they were blatant about the energy savings, until that didn’t fly well enough. Then they started talking about “lives saved.” Of course, driving slower makes travel take a bigger chunk out of the lives of people who live spread out, but they don’t count anyway.

          Sadly for him, Carter was both religious, and didn’t invent “bitter clingers” to bolster his othering of people who disagreed with him. He did successfully not let the convenient (oil) crisis go to waste, to implement his agenda. So, that’s consistent. It never changes.

          The problem in the hinterloands is, the money’s already been routed to DC. You can get your share back, or not. The supreme court at the time did a dance about how “coercive” that had to be, to count as – er – coercion. Subsequently, allowing this has been the basis for at least title IX “enforcement” through the federal department of ed*, various EPA regs**, and elements of the affordable care act***.

          We have that centralize the pot then dole it out thing twice, here in The People’s Republic of New York. To the certain consternation of Proconsul Cuomo-the-Younger, his regional economic development fund competition has been universally dubbed “The Hunger Games”, including in various “news” vehicles which essentially transcribe administration press releases. It’s so blatant that even those lapdogs with bylines get it. If they weren’t immune to irony they’d be laughing at themselves. As it is …

          Don’t get me started on how this legislation by inter-govenment payola plays out in “homeland security”, drug enforcement and immigration.

          * If we don’t think you’re “title IX compliant” enough, we can withhold various federal funding that goes to your school, including scholarship eligibility and research grants. But, because this is discretionary spending, this isn’t a penalty, isn’t enforcement, and isn’t even “withholding” anything.

          ** Don’t get me started.

          *** “Do it this way, or you won’t get your (already paid out) share of Federal medicare, medicaid, hospital support, service fee support, or … it goes on.

    • It’s a clear erosion of the rule of law. Is it just politcal laziness or the continuing attempt by the left to commit cultural suicide?

      In California everything is illegal, everyone decides how many laws they will obey or break at any time and the victims of the mala prohibita laws are whoever it is expedient to prosecute. Illegal alien? Come right in. Illegal gun owner, your life is ruined if we catch you.

      The overall message is the law is confusing, arbitrary and occasionaly enforced. Or not. And that is more dangerous than any one stupid policy. The third world to the south is full of people that risk much to come to the rule of law. Even if they don’t think of it that way. We are rapidly moving to meet them in the lawless middle.

    • “For example, those of us residing in Washington State are disinclined to obey recent legislation that requires a background check to let our shooting buddy run a couple of rounds though one of our guns out at the range.”

      Like absurdly low speed limits, laws like this have little or nothing to do with effecting meaningful change. Instead, they function as “symbolic signposts” which reassure gun-control advocates that their social values and statues are more powerful than their cultural enemies, the gun owners. The utility of the law is in its existence, it visibility to advocates, rather than in its ability to solve a problem. The inherent weakness of such laws is that they obviously conflict with traditional behavior.

      When laws attempt to proscribe traditional behavior a counter phenomenon called “patterned evasion of social norms” emerges as people begin coming up with inventive ways to circumvent what they regard as an onerous intrusion into their daily lives. We live in interesting times.

    • James Madison had something to say about this sort of law, whose main purpose seems to be to reassure some bare majority of their supremacy by alienating another constituency:

      13.   Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority?

      -James Madison, A Memorial And Remonstrance Against Religious Assessments .

  2. my FAL was imported to the USA during the awb years. It now has a pistol grip, flash hider, and bayonet lug. In it’s configuration under the awb, it was functionally exactly the same. It takes a special kind of stupid to think the removal of features not related to the function of the rifle will somehow make a weapon less deadly.

    • As a follow up thought, the limitation of features in the 1994 -2004 awb, served no purpose to curb any type of crime that could be committed with an “assault rifle.” The only purposes of a bayonet lug, a flash hider, and a pistol grip are purely militarily. (aside from the pistol grip, maybe). One does not need those implements to perform drive by shootings, school shootings, movie theater shootings, etc. In crime, the function of the rifle is all that is necessarily. It’s only in civilian military maneuvers where those features become useful. I.e. insurrection. This is insight into the motivations of the politicians who voted for the legislation.

      • You misunderstand the purpose of the “features” bans. The purpose is to make it impossible to own an EBR, as at the time of the enactment of these laws, these firearms usually had one or more of the banned features, like pistol grips on ARs and AKs, flash hiders, collapsible stocks, etc. California’s current law (that was enacted prior to the 1994 federal AWB and has no sunset clause) required all EBRs to have a magazine that could only be removed with the use of a tool–the Legislature not expecting that some smart designer would develop a workaround. There are three bills now pending, two of which seek to close the “bullet button loophole,”: and a third that will ban ALL semiauto rifles and shotguns that have detachable mags and require the registration of all existing BB equipped rifles as “assault weapons.” The authors of the bill have publicly stated that the intent of the 1993 law was to ban all EBRs in the state of California.

  3. Rational basis is such a low threshold that it’s almost completely inapplicable to Constitutional law issues, where a higher standard is required. “Rational basis” is only applied when there are no fundamental rights involved.

    The dumbest laws on planet Earth can survive the “rational basis” test. And they have.

    • Which makes the “rational basis” test no test at all. It is only a way for politically motivated judges to render some laws they do not like as “not rational”. Cramer gives at least one politically correct example.

    • Yeh – Heller in particular noted that a higher level of scrutiny was required than Rational Basis, since the 2nd Amdt. protects a fundamental right (and, it is hard to argue that abortion, which is an unenumerated right is more fundamental than the 2nd Amdt. RKBA, which is explicitly enumerated). The Supreme Court wouldn’t tell us whether Intermediate or Strict Scrutiny was required, but rather just that it required a higher level of scrutiny than Rational Basis.

      • Reasonable/Intermediate/Strict – lawyer speak weasel words so they didn’t have to come right out and say that the Second Amendment means EXACTLY what it says the way the writers of the Bill of Rights intended. The only saving grace being that it was probably seen as necessary to get the critical 5th Justice to agree to support the ruling.

        • I don’t believe that you realize that rational basis/heightened scrutiny/strict scrutiny are not just concepts used to review 2Am laws. This is the standard of judicial review for every equal protection issue brought before the court that touches on a protected right. It was not conceived by cunning lawyers to sidestep strict constructionism. In fact, this hierarchy is a friend of strict constructionist like yourself… it basically is the S.Ct’s way of drawing the boundaries for Congressional action in relation to rights. Go outside the boundary and get invalidated.

          For someone clearly unfamiliar with these concepts, I would encourage you to visit this very approachable overview of judicial standards of review for equal protection issues and Constitutional rights: http://nationalparalegal.edu/conLawCrimProc_Public/EqualProtection/HistoryOfEqualProtection.asp

  4. Hillary’s Australian-Style Gun Control will eliminate “names” of bad weapons.
    If it’s a semi-auto or pump or even looks military, IT WILL BE BANNED.

    • That’s exactly where it’s heading in Kommieforinastan. A lot of us are going to be felons, if we’re not already. I’m wondering what I’m going to do with my clipazines that shoot 30 clips a second out of a ‘ghost’ gun.

  5. It’s been years since I’ve seen one, so I did a quick YouTube search.

    …And found something amusing.

    Listen for an actual “Here, hold my beer” in this:

    • I’m sure they went through the NFA process for that…..lol. That was sarcasm by the way. I have always wondered how many non-registered full auto AR’s and AK’s are hanging out in the backs of peoples’ gun safes. My guess is a lot. Just goes to show that people will do what they want even in the face of stupid feel good legislation.

    • Not that these are the brightest fireflies on that dark night, but how smart is it to engage in breaking a federal gun law and allowing it to be posted on YouTube with your extremely distinctive hand tattoo for everyone to see? Yikes!

  6. I recall talking to a former army officer, who was then a manager in the Civil Service.

    He was astounded to learn that the “assault weapon” ban was on semi-autos. This was about 1992. He, being only casually interested, was sure that it was all about full-auto firearms. He did not have difficulty believing me; he was simply astounded that he had been so easily mislead.

  7. Didn’t the President say it’s as easy to by a gun on the internet as it is to buy a book on amazon (or something to that effect)?

    We’ve been fighting emotion and outright lies with facts for too long. It’s time to take the gloves off and appeal to people’s fears and emotions, just as the disarmers do.

    How about some FOBLO (fear of being left out)?

    Don’t you want a gun? Have you seen recent gun sales? Everybody’s getting one. Women, minorities, liberals, families, etc. You’d better get one before it’s too late. Do you want to be the last one standing, all alone, in an empty gun shop?

  8. Is this a peer reviewed paper? I’m helping someone put together an essay and that is one of the source requirements. Couldn’t really tell when I opened up the doc.

    • In this day of politicized science and general research, “peer review” doesn’t mean a whole lot. Publication bias exists.

      Too bad your friend has to meet such a ridiculous requirement for sourcing information. So much for focusing on the IDEAS and the THOUGHTS presented, eh?

      That’s a nice, underhanded way to chop off a LOT of stuff that could be well written. And, even it is NOT well written, even if non-peer reviewed material is pablum, so what? It bears inclusion in a work as “Here’s what someone said, and I can debunk it” in that case.

      Good grief. Another example of the decline of intellectual honesty.

  9. Oh, there’s another angle.

    These laws are perfectly rational as political theater. That’s a great debate pivot: ” … does nothing about violence but might get you elected.”

  10. AWB is just cosmetics, unless it just bans all semi-auto guns; but that actually is a semi-auto ban.

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