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John Rosenberg

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January 3, 2013 - 12:34 am

In a recent conversation about gun control it was suggested that Australia could provide a model of what we should do here: Google it, and you’ll find scores of articles like this one imploring us to follow Australia’s example. The central component of Australia’s program is a prohibition of semi-automatic rifles and shotguns (and pump-action shotguns as well) along with a forced buy-back program that has resulted in the destruction of some 630,000 weapons at a cost of $500 million.

There is dispute, as one might expect, about the effect of this stringent gun control policy. The article linked above refers to studies that laud its effectiveness; this recent piece in the Wall Street Journal by Joyce Malcolm, a respected American historian of gun policy, cited other studies and argued that the positive effects of the Australia policy have been greatly exaggerated.

Whatever the effects in Australia (or Great Britain, also described by Malcolm), however, I think the relevance of policy in other countries is severely limited. For every journalist, politician, and other liberal who plaintively asks: “Why can’t we be more like [Australia, Great Britain, Japan, wherever]?”, there is the predictable (and at least equally reasonable) rejoinder: “Why can’t we be more like Switzerland?” Switzerland requires all males between the ages of 20 and 30 with few exceptions to possess a government-issued rifle capable of automatic fire (the Sig 550) and/or the Sig 220 semi-automatic handgun for officers. “Although there is more per capita firepower in Switzerland than any place in the world,” Stephen Halbrook has observed, “it is one of the safest places to be.”

In terms of the relevance of foreign examples, however, the case of Australia may indeed be instructive. What would its policy look like here? For starters, how many weapons, and of what kinds, are we talking about? Last week, NBC News reported:

According to the Congressional Research Service, in 2009 there were an estimated 310 million firearms in the United States (not including weapons on military bases), of which 114 million were handguns, 110 million were rifles, and 86 million were shotguns.

A separate calculation by the Government Accountability Office estimated that 118 million handguns were available for sale to, or were possessed by, civilians in the United States in 2010.

The NRA has estimated that semi-automatic weapons make up about 15% of privately owned firearms in the U.S. That would be over 45 million weapons, but I suspect that estimate is far too conservative. If there are 118 million handguns in private hands, there are probably almost 45 million semi-automatic handguns alone. Regarding the AR-15, the iconic “assault” rifle used in Sandy Hook and several other mass shootings, the New York Times recently quoted two sources estimating that “3.3 million to 3.5 million” were made in the U.S. and not exported. And that’s just one model of one semi-automatic rifle; it does not include the wildly popular Ruger Mini-14 or Mini-30, which are of a design different from the AR-15s. Nor does the NRA estimate include pump shotguns — which can be fired almost as rapidly as semi-automatics — as Australia did.

The United States, in short, is awash in semi-automatic and other rapid-fire weapons — and the high-capacity magazines that feed them. (A 1999 study by criminologist Christopher Koper for the National Institute of Justice found that the 1994 high-capacity ban was of limited effectiveness because of the ”‘immense stock’ of about 30 million such magazines” already in circulation, a number that is no doubt higher now.) Not only does the sheer number of rapid- fire weapons and high-capacity magazines in private hands make the Australia experiment virtually irrelevant here; it also provides the basis for a strong argument beyond the Second Amendment that a new prohibition of them would be unconstitutional.

Yale law professor Akhil Reed Amar has powerfully argued that the “unenumerated rights” protected by the Ninth and Fourteenth Amendments provide stronger support for the individual right to bear arms than even the Second. In “Putting the Second Amendment Second,” for example, Amar explains:

In identifying these unenumerated “rights retained by the people,” the key is that a judge should not decide what he or she personally thinks would be a proper set of rights. Instead, the judge should ask which rights have been recognized by the American people themselves—for example, in state constitutions and state bills of rights and civil rights laws. Americans have also established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected. Many of our most basic rights are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low.

In “America’s Lived Constitution,” summarizing chapter three of his recent America’s Unwritten Constitution, Amar writes:

[Although unenumerated rights] are by definition not expressly listed in the terse text, the written Constitution signals their existence and provides broad guidance about where and how to find these rights. One of the most obvious places where these rights are to be discovered is in the lived practices and beliefs of the American people themselves. Another source of these “lived” rights is where Americans live: their homes.

Although lawyers can argue about where permitted regulation ends and impermissible prohibition begins, semi-automatic rifles, shotguns, and pistols are “simply facts of life” in America, and banning them would indeed be challenging. One need think only of the lack of success of an earlier experiment with Prohibition (“a miserable failure on all counts”) — whose contraband after all was consumed and so not stockpiled — to begin to see both the practical and constitutional challenges of separating millions of Americans from their even more millions of semi-automatics.

One final, dispiriting point. I mentioned that I was prompted to look into the Australia example after a Christmas conversation with a gun control-supporting friend. Since he is unusually well-informed about a wide range of subjects (far more than I) — as evidenced by the fact that he had read both about Australia and was familiar with the Akhil Amar argument discussed above — I was initially surprised that he believed that “assault” rifles were more powerful and could fire much faster than ordinary rifles in wide circulation.

“Initially,” because I then remembered that my friend gets nearly all of his information from the mainstream media and NPR. Two post-Sandy Hook articles from the New York Times illustrate the pitfalls of relying on such sources.

A December 17 article by reporter Erica Goode, for example, uncritically quotes Tom Diaz, a senior policy analyst at the anti-gun Violence Policy Center, claiming that the AR-15 used by Adam Lanza in his murderous killing spree in Connecticut and in the recent mass shootings at a Colorado movie theater and shopping mall in Oregon “are made and designed for war.”

They are not. They are made for civilians. The military versions are capable of automatic fire; the civilian versions are not. They fire no faster than any other semi-automatic, and they are and have been for a while designed to prevent conversion to automatic fire. As a professional anti-gun wonk, Diaz probably knows that the versions available to the public are not “designed for war,” but he probably, or at least reasonably, suspects that New York Times reporters and readers won’t.

Ms. Goode does acknowledge that “defenders of the firearm … argue that unlike the AR-15’s military counterparts, the civilian models are almost all semi-automatic, not fully automatic, and so should not be classified as assault rifles.” This distinction, however, is a fact, not simply a matter of interpretation that defenders and critics can reasonably “argue.” Moreover, her statement that civilian models “are almost all semi-automatic” is misleadingly imprecise. Fully automatic weapons have been illegal since 1934 and there are virtually none on the streets today.

In the same misleadingly even-handed way, Ms. Goode notes that:

Critics describe them as high-power weapons — in addition to firing multiple rounds quickly, they have a higher muzzle velocity than traditional rifles. But defenders say that most AR-15s are chambered for .223 or 5.56 ammunition, low-caliber rounds that are less deadly than those used in many handguns.

The semi-automatic weapons at issue are, of course, high-power weapons capable of firing many rounds quickly, but then so are all semi-automatic rifles. Again, however, it is a fact, not a matter for interpretation or argument, that a .223 round fired from a so-called “assault rifle” has no higher velocity than a .223 round fired from any of the many non-”assault rifles” that chamber that round. The velocity of the .223 is indeed higher than most heavier rounds, but that doesn’t make it more powerful because it also has a smaller bullet.

Another article that appeared in the Times on the same day, by N.R. Kleinfield, is guilty of the same inaccuracies and distortions, noting for starters that Adam Lanza’s Bushmaster AR-15 is “a military-style assault weapon.” As we’ve seen, it isn’t — unless by “military style” Kleinfield is referring only to superficial cosmetics like a pistol grip and folding stock.

The Times editors are no better informed than its reporters. A Dec. 29 editorial repeated the mantra about the “military-style assault rifle” used by Adam Lanza noted, again inaccurately, that such rifles put ”military firepower” into the hands of civilians and “bristle with features useful only to an infantry soldier or a special forces operative” such as “quick-change magazines [that] let troop reload easily.” Detachable magazines that let shooters reload easily are, of course, featured on all semi-automatic rifles and pistols, not just ones sporting a “military-style” appearance, and no rifles for sale to the public have “military firepower” because they lack the military’s automatic fire capability.

Regarding the devastating power of the .223, Kleinfield adds, with unwitting humor that disqualifies him as a reliable reporter on gun matters, that “[s]ome of the bullets fired inside the [Sandy Hook] school, according to a law enforcement official, ‘penetrated the glass windows of the classrooms and went into vehicles in the parking lot.’” Of course any bullet from virtually any pistol or rifle — including the lowest powered .22 and even many air rifles — would easily penetrate “glass windows.”

He adds that “[t]he .223-caliber bullet is a small, high-velocity round that has been used by Western military forces for decades, in part because it inflicts devastating wounds.” In fact, as a writer on Military.com notes, the .223 (or 5.56mm NATO) was selected “because it offered soldiers more ammo carrying capacity” than the larger .30 caliber rounds that had been in use. Moreover, as this thorough Military Law Review article on the controversy over hollow-point ammunition points out, the military has actually avoided the use of ammunition that causes the most “devastating wounds,” not only for humanitarian reasons but also because military “weapons and [their] ammunition were (and remain) ‘designed for incapacitation rather than lethality’ — which supported the prevailing doctrine that ‘wounding enemy soldiers increased the logistical burden on the enemy.’”

Virginia and other states actually ban the use of .223 rifles in deer hunting — not because it is too powerful and causes such devastating wounds, but because it is too small and weak to ethically harvest deer. According to Virginia Department of Game and Inland Fisheries Deer Project Coordinator Matt Knox: “We could argue ‘til the cows come home, but we err on the conservative side of achieving humane and ethical kills.”

Kleinfield does helpfully point out that the police found “‘numerous’ empty 30-round magazines for the Bushmaster rifle” and “a number of magazines for both pistols” (a 10mm Glock and 9mm Sig Sauer) Lanza had, but he doesn’t seem to realize that the presence of all these magazines with their “hundred of unfired bullets” strongly suggests that a limitation on magazine capacity would have had no effect on the lethality of Lanza’s carnage. True, he did use 30-round magazines, but Ms. Goode quoted the medical examiner’s observation that Lanza had fired “up to 11 bullets into each victim’s body.” Since there were 26 victims, it’s obvious that Lanza had no difficulty changing magazines.

Of course the shooter wasn’t rushed, since according to CNN’s timeline the police didn’t arrive until 20 minutes after the shooting started. All a high-capacity magazine ban would accomplish (assuming it would accomplish anything except driving up the price of the 30 million already in private hands) is that shooters intent on mass slaughter would bring more weapons (Lanza had three) and/or magazines. Indeed, a perfectly predictable but unintended consequence of banning high-capacity magazines would be to decrease the appeal of 9mm handguns and increase the popularity of more the powerful and lethal .40 and .45 caliber and .357 Magnum, since the main appeal of the 9mm has always been its higher-capacity magazines.

Kleinfield also helpfully quotes Connecticut Gov. Dannel Malloy, who said “Mr. Lanza had killed himself as police officers entered the school, suggesting that he was prepared to take more lives had they not arrived.” Malloy added that “[w]e surmise that it was during the second classroom episode that he heard responders coming and apparently, at that, decided to take his own life.”

It thus seems likely that the slaughter of unarmed innocents, both students and staff, could have been ended much sooner if Lanza had been confronted much sooner with armed opposition. All things considered, attempting to combat mass shootings by emulating Australia’s experiment with prohibition would be rather like attempting to eliminate drunk driving by banning bourbon.

More: Illinois Democrats Move to Ban Most Modern Firearms

John Rosenberg blogs at Discriminations.
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