On Wednesday, Sen. Dianne Feinstein (D-Calif.), who has been advocating banning one sort of gun or another for over 30 years, held Senate Judiciary Committee hearings on her new gun and magazine ban legislation, S. 150, the “Assault Weapons Ban of 2013.”
Among those testifying in support of the bill were John Walsh, the U.S. Attorney for Colorado, representing the Obama Department of Justice, Milwaukee police chief Edward Flynn, and Philadelphia mayor Michael Nutter. Testifying against the bill were former U.S. Rep. Sandy Adams (R-Fla.), Fordham University law professor and longtime Second Amendment scholar Nicholas Johnson, and attorney and constitutional scholar David Hardy.
Feinstein insisted on holding her own hearings because hearings held a month ago by Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) didn’t produce enough support for her bill. In the earlier hearings, NRA Executive Vice-President Wayne LaPierre, University of Denver law professor David Kopel, and attorney Gayle Trotter spoke against banning “assault weapons” and magazines that hold 11 or more rounds, and also against criminalizing private sales, gifts and trades of firearms. Sen. Feinstein and most of her supporters at this hearing demonstrated ignorance, hypocrisy, and bad behavior from start to finish, and never offered evidence to support the restrictions they advocated.
Incredibly, Sen. Feinstein began the hearings with a video showing an after-market device that helps a person pull a semi-automatic rifle trigger faster, citing the existence of the contraption as a reason to ban the rifles themselves. That would be akin to banning automobiles because someone might soup them up to make them go faster. Tellingly, Feinstein proposes to ban the guns themselves, as well as the device.
After Walsh and Flynn advocated the gun and magazine bans, and “universal” background checks, Sen. Lindsey Graham (R-S.C.) asked both of them if they knew how many murders are committed with rifles of any type, and how many prosecutions they had undertaken of criminals who failed background checks when illegally trying to buy guns from dealers.
Easy questions, one would think, but Walsh fumbled his answers like a third-string running back playing his first game of the season in an ice storm, saying that he didn’t know for sure about rifle murders and that his prosecutions had numbered zero.
Flynn then interrupted Sen. Graham to say that prosecuting criminals who illegally try to buy guns was irrelevant. The chief’s attempts to cut Sen. Graham off were so disrespectful that Sen. Feinstein herself intervened, banging the gavel and insisting on civility during the proceedings. By stark contrast, Sen. Graham did the people of South Carolina proud, by distinguishing himself with truly remarkable restraint. And for the record, Sen. Graham noted, rifles of any type are used in only about 2.5 percent of murders, half the percentage accounted for by murders with bare hands.
Prosecutor Walsh may not have had much to say about prosecutions, but he had quite a bit to say about banning guns, and it didn’t help Feinstein’s cause. Asked by the committee’s ranking Republican, Sen. Chuck Grassley (R-Iowa), whether S. 150 would be constitutional, Walsh said that it would be constitutional only if the guns that are banned are not common, are “dangerous and unusual,” and are not relevant to the right of self-defense. Of course, the firearms that would be banned by S. 150 are common, and are not “dangerous and unusual” in the sense in which that term has been used historically in the law. And it should go without saying that magazines that hold 11 or more rounds and firearms designed to use them are certainly relevant to self-defense.
Walsh had even more to say about banning guns when Sen. John Cornyn (R-Texas) asked him to explain what makes a gun an “assault weapon.” According to Walsh, any rifle that has a “very high” rate of fire and that uses a “very high-capacity” magazine is an “assault weapon.” Assuming that Walsh thinks semi-automatic rifles have “very high” rates of fire, and that any magazine that holds 11 or more rounds is “very high-capacity,” his description might fit with S. 150’s ban on detachable magazine semi-automatic rifles that have any “characteristic that can function as a grip”–in other words, all of them. It wouldn’t, however, explain S. 150’s proposed ban on almost every semi-automatic shotgun, some handguns, and various fixed-magazine rifles.
Sen. Cornyn expressed doubt that S. 150 would reduce crime, for at least two reasons. First, as he pointed out, the congressionally mandated study of Feinstein’s 1994 ban determined that “The evidence is not strong enough for us to conclude that there was any meaningful effect [of the ban on crime]; i.e., that the effect was different from zero.” Second, he noted that “out of 76,000 denied background checks, the FBI referred to the Bureau of Alcohol and Tobacco, Firearms, a verdict or plea was reached in 13 cases,” a track record he described as “abysmal.”
Sen. Ted Cruz (R-Tex.) disputed Walsh’s claim that Feinstein’s 1994 ban had not been sufficiently evaluated–a claim that put Walsh at odds with Feinstein, who claims that studies show that the 1994 ban reduced crime. Sen. Cruz said, “The Department of Justice has funded at least three studies, on whether that bill had any positive effect. In 1999, the DOJ had concluded that the Assault Weapons Ban, quote, ‘Failed to reduce the average number of victims-per-gun incident, or multiple gunshot wound victims.’ In 2004, the [National] Institute for Justice concluded that the Assault Weapons Ban produced, quote, ‘No discernible reduction in the lethality and injuriousness of gun violence.’ And then, in 1997, the [congressionally mandated study by the Urban Institute] likewise concluded that there was no evidence to say any meaningful effect different from zero.’ Are you aware of any empirical data to the contrary? We have three studies concluded from the Department of Justice that the prior ban had no effect.”
Smart enough to realize that he had been cornered, Walsh simply contradicted the clear evidence, claiming “there’s certainly enough evidence that assault weapons are used disproportionately in attacks with multiple victims and victims with multiple wounds.” In fact, however, the Urban Institute study stated just the opposite–that under the ban, researchers “were unable to detect any reduction to date in two types of gun murders that are thought to be closely associated with assault weapons, those with multiple victims in a single incident and those producing multiple bullet wounds per victim.”
Prof. Johnson explained in considerable detail why S. 150’s definitions of “assault weapon” are “unsustainable under the lowest level of constitutional review [and] fail even to meet the rudimentary, rational basis requirement.” Attorney David Hardy focused on explaining the difference between fully automatic rifles used by the military and semi-automatic rifles that S. 150 would ban, explained that rifles like the AR-15 are not particularly powerful, and showed how S. 150 would ban guns that are functionally identical to guns that would not be banned.
Former Rep. Adams summarized the findings of the congressionally mandated study of Feinstein’s 1994 ban, saying that “the banned weapons, and magazines were never involved in more than a modest fraction of all gun murders” and summarized a follow up study’s conclusions, saying that “assault weapons were used in a particularly small percentage of gun crimes, and that assailants fired less than four shots on average, a number well within the 10 round magazine limit imposed by the ban.” She also cited the success of measures she had sponsored in the Florida Legislature to prevent the purchase of firearms by those whose mental illness might create a risk of violence, and concluded “It is not time for feel-good legislation, so you can say you did something, but it is time for a true discussion on the culture of violence, and how to prevent more violent crime.”
Then, to the regret of every civil human being in the room, came Sen. Dick Durbin (D-Ill.). Durbin began with a disrespectful attack on Prof. Johnson. After calling the Second Amendment “a suicide pact,” and saying–with apparent reference to commonly owned firearms like the AR-15–that “what has become common in America is unacceptable in a civilized country,” Durbin repeatedly refused to let Professor Johnson answer the questions thrown at him, and then falsely claimed that AR-15s and similar firearms had been “excluded by [the Supreme Court’s decision in District of Columbia v.] Heller.”
Eventually, Durbin allowed Professor Johnson to respond, at which point Johnson politely and articulately handed Durbin his hat, concluding, “If you go before the Supreme Court with what is ultimately a piece of legislation that really just generates more demand for the very type of gun that you’re trying to ban, ultimately you’re going to have the same failure that you had [with the 1994 ban].”
Then, in the most despicable comment of the day, low even by anti-gun zealots’ often subterranean standards, Durbin went after Rep. Adams.
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After Rep. Adams acknowledged that her husband–a fellow law enforcement officer–had died in the line of duty, Durbin sarcastically said, “I’m sure you’ll now support the universal background check to keep the guns out of the hands of criminals, won’t you?”
In days gone by, such a heartless attack wouldn’t have been tolerated by fellow senators. But Rep. Adams displayed the cool head that served her well both in law enforcement and in politics, looking Durbin straight in the eyes and saying, “No, sir.”
Some comic relief would have been welcome at that point, but Sen. Al Franken (D-Minn.), the comedian-turned-politician, instead made a few comments pretending to respect Minnesota’s firearm traditions, then listed several shootings in which semi-automatic rifles or magazines larger than 10 rounds were used, and said he doubted that anyone needed the same kinds of firearms and magazines for self-defense. Franken had apparently missed the comments of Sen. Mike Lee (R-Utah) earlier in day; Sen. Lee had cited statistics showing that in nearly half of defensive firearm uses, there are two or more attackers, and in nearly 25 percent, there are three or more attackers.
Sen. Richard Blumenthal (D-Conn.) challenged Professor Johnson’s assessment of S. 150’s constitutionality, saying that legal challenges to the 1994 “assault weapons” ban had been unsuccessful and that “the courts have a responsibility to deem constitutional, to presume constitutional, valid acts of the legislature.”
Professor Johnson disagreed, pointing out that under the Supreme Court’s decision in Heller, declaring the Second Amendment to protect a fundamental, individual right to keep and bear all bearable arms for defensive purposes, for gun-ban legislation to survive “requires something far more than simply rational basis. That is, it’s not an automatic deference to whatever the legislature does, because now, what we’re talking about is a constitutional right.”
The next attack on that right at the federal level is scheduled for next week, when the Senate Judiciary Committee will meet again–this time to mark up several pieces of gun-related legislation including S. 150 and a bill criminalizing private firearm transfers.
Take action now to block those bills. Please contact your elected officials, and respectfully urge them to protect our constitutional right to keep and bear arms. To identify and contact your legislators in Washington, D.C., you can use the “Write Your Reps” feature at www.NRAILA.org, or you can reach your member of Congress by phone at 202-224-3121.
