Would an Assault Weapon Ban Violate the First Amendment?

Now, you might think for a second that is a typo.  “Wait, Aaron,” you might say, “don’t you mean the Second Amendment?”

Well, that is the more direct concern, but there is also, believe it or not a First Amendment, freedom of expression, concern.  But that takes a bit of explanation.

First, have you ever played a video game where there was a lot of driving involved?  Did you ever notice something funny with the cars?

For instance, I enjoy the Grand Theft Auto franchise.  As you might know, the game lets you steal any car you want and when you do, you see a quick display on the screen telling you the name of the car you just stole.  They are great vehicles like the sporty Banshee, the muscle car Sabre, the classy Admiral, and the SUV Cavalcade.

What?  You never heard of those cars?  Well, that’s because they don’t exist in the real world.  Of course allegedly they resemble real cars.  Take the Banshee.  It looks like this...

...it is argued that it looks like a Corvette (1984-96).  But it is not exactly the same and it is not called a Corvette.  And there is a reason why this is the case.

At the same time, if you played Need for Speed: Most Wanted (the earlier version), you will see cars like the Volkswagen GTI, Audi TT, Mitsubishi Eclipse, and the Toyota Supra.  These are obviously real cars, and while I am not a big “car guy” they seem reasonably close to the real things, at least in outer design.

Indeed years ago, there was a game called Test Drive.  It’s been through a number of iterations, but the original selling point back when I was straining my Apple IIc to play it was that you got to drive several true-to-life sports cares, like Porches and Ferraris.  Witness the awesome real life gameplay...

It’s just like driving it, isn’t it? 

Aside from having my nostalgia dashed a bit, what is going on, here?

Well, the lawyer in me recognizes that what this is about is intellectual property.  Not only is the mark on a car (like the Ford Oval or that T like thing for Toyota) a matter of trademark, but even the design of the car is a matter of copyright.  It is generally agreed that this is a matter of the look of the thing, the flourishes and not the actual “useful elements.”  In other words, you probably can’t copyright much in a drive train, but if you make a Batmobile, D.C. Comics might be able to win a judgment against you for it.  In other words, there is an expressive element in designing a car, that is considered even worth protecting in intellectual property law.

And remembering that made something click in my mind.  You see, you might remember a bit back I discussed a legendarily awful game called NRA Gun Club.  It wasn’t in the review I quoted from, but in this review at Gamespot, there is a curious line:

The game features the name and endorsement of the National Rifle Association and bills itself as having "over 100 licensed and faithfully recreated firearms." The NRA license translates to a series of safety tips that are shown during the loading screen. The licensed firearms, from companies like Beretta and Savage Arms, are each given a screen with a rendered, somewhat-accurate model of the pistol, rifle, or shotgun in question, along with a bit of text about it.

In other words, one of the “selling points” was that this game would supposedly simulate using those guns to shoot simulated stationary, non-living, targets, just as the selling point of Test Drive, was the ability to drive a car you probably could never afford (and in my case, long before I get my license).

That isn’t the only game that uses officially licensed guns.  As a recent New York Times article noted, often video games such as Medal of Honor and Call of Duty made arrangements to place authentic guns in those games.

(Of course the New York Times sneers that that the gun manufacturers give money to the NRA, which then makes a vague profit link between the NRA and kids playing violent video games.  I suppose next the NYT will denounce how Planned Parenthood lobbies for abortion rights and provides abortions on site—sometimes with government subsidies—directly profiting from the “Constitutional right” they champion, right?  Of course they won’t, nor will they ever look in the publishing companies’ support for the ACLU.  It is perfectly appropriate even to profit directly from a right allegedly in the Constitution, but only for certain rights and not others.)

The point is that the very shape of a gun is a matter of design, of expression.

So now let’s talk about the assault weapon ban that gets bandied about.  Now one can only guess what a new assault rifle ban might look like, but it is safe to say it might look a bit like the old one, right?

So let’s look at what the old one actually is.  I found the law’s text and it had two definitions.  First, it had a list of specific models that were banned. 

(30)      The term `semiautomatic assault weapon' means—

(A)       any of the firearms, or copies or duplicates of the firearms in any caliber, known as--

(i)         Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);

(ii)        Action Arms Israeli Military Industries UZI and Galil;

(iii)       Beretta Ar70 (SC-70);

(iv)       Colt AR-15;

(v)        Fabrique National FN/FAL, FN/LAR, and FNC;

(vi)       SWD M-10, M-11, M-11/9, and M-12;

(vii)      Steyr AUG;

(viii)     INTRATEC TEC-9, TEC-DC9 and TEC-22; and

(ix)       revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12;

Okay, that is relatively easy.  The last one is a little vague, but okay.  Then we get into the “descriptive definition”—that is weapons that are not specifically called out, there:

(B)       a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of—

(i)         a folding or telescoping stock;

(ii)        a pistol grip that protrudes conspicuously beneath the action of the weapon;

(iii)       a bayonet mount;

(iv)       a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and

(v)        a grenade launcher;

(C)       a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of--

(i)         an ammunition magazine that attaches to the pistol outside of the pistol grip;

(ii)        a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;

(iii)       a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned;

(iv)       a manufactured weight of 50 ounces or more when the pistol is unloaded; and

(v)        a semiautomatic version of an automatic firearm; and

Now, before I get into it, let me tell you about my background with guns.  I refer to myself as an ardent supporter of the Second Amendment and a middling practitioner.  I know my own guns in and out and can fire them accurately.  But no one would mistake me for a gun aficionado.

No, that is more like my blog friend John Hoge, who was kind enough to help with what I am about to say.  Still it is fair to assume that any mistakes are made by myself and not Mr. Hoge.

It’s a common complaint about the assault weapon ban that is very much focused on looks.  Well, some of this is substantive.  For instance, there has to be a stock on a rifle due to other regulations, and if you can fold it or telescope it, you can more easily conceal it.  And the ability to more easily hide the gun is relevant, right?

On the other hand some of it is downright arbitrary and capricious.  For instance, the requirement of a “protruding pistol grip” means whether or not the grip of the gun is sufficiently separate from the rifle.  So for instance, this is an assault rifle (Ruger's version):

And this is not, at least as that term is understood in that prior law:

And for reference purposes and not at all for Rule 5 purposes, here is a lady holding what appears to be the same weapon:

Now it is not merely because of the Hello Kitty decorations that the second one is not an assault rifle (indeed, that is not even relevant to the question).  No, it’s because of that slight difference in the shape of the stock.

Is the gun less effective as a result?  Nope.  Shoots the same, kills the same, same accuracy, same everything.  It just looks different.

And how about these two:

(iv)       a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and

(v)        a grenade launcher;

At home, you might be about to say, “Come on, Aaron, are you about to say that adding a grenade launcher doesn’t make it deadlier?”  Well, I am.  On certain rifles, a flash suppressor can also function as a grenade launcher without actually having a technical “grenade launcher” attachment.  All you do is attach the grenade to the barrel, stick in a special cartridge and bam, you can use that to launch a grenade and it is just as deadly as a separate grenade launcher.  So as long as you don’t have any of the other features involved, such a rifle can have a flash suppressor and launch grenades with it, and that only counts as one feature under the statute.  Remember the rule is you have to have two of the features listed above and such a flash suppressor only counts as one.

And the bayonet attachment is a difference, but are we really very concerned that a person might buy a gun and start stabbing people with it?  Or is it the shooting part that is the issue?

Under pistols it can be an assault weapon if it has “an ammunition magazine that attaches to the pistol outside of the pistol grip.”  So it’s a matter of where the magazine attaches.  This changes some of the inner workings, but it doesn’t change how deadly the weapon is, how fast it shoots or how accurately it aims.  This is about cosmetics: it makes it look more like what you imagine as a “scary” gun.  Likewise the “a shroud that is attached to, or partially or completely encircles, the barrel” is also a cosmetic difference.  And weight is only relevant if you are concerned that the weapon might be thrown at someone.

(Of course the classic takedown of that cliché in police shows, was on Police Squad!, the very short lived classic TV show later adapted into the Naked Gun movies.  In the episode called “A Substantial Gift (The Broken Promise)” the final gunfight had the bad guy running out of bullets and then throwing his gun at Leslie Neilson’s Frank Drebbin, and then Drebbin throwing his.  And then the next thing you know, they are just throwing guns at each other like snowballs.)

And of course whether it has a detachable magazine—as opposed to a fixed one—is relevant, in two ways.  There is a lot of technical detail here, but the key thing comes down to how you reload the gun.  You can use detachable magazine, and reload the gun by ejecting the spent magazine and putting in a new one.  Or you can use a fixed magazine and use a device called a “clip” to put new bullets in your gun.  What is the difference, then?  Clips are slightly slower (very slightly) and also more dangerous.  That is right, this regulation actually makes your gun more dangerous.

Now there is also a section on shotguns in the statute, but I think you are getting the picture.

Some of these design choices we have discussed do make a significant difference.  Whether you have the ability to equip a silencer is relevant, for instance.  But on the other hand, some of these forbidden design choices is truly arbitrary.

And like I said, there is an expressive element to design.  So we have a statute discriminating among methods of expressing the same functionality, based on cosmetic differences.

Of course there is a certain facetiousness involved here.  If the loopholes are so obvious, gun manufacturers will know to go around them.  So if you want the advantages you get from a pistol style grip you get the Hello Kitty rifle pictured above (and promptly give it a new paint job), and you’re good to go.  While there is some “stifling” of expression through design I don’t expect any court to ever care, and I don’t expect any lawyer representing a client in a real case to argue it.

But there is a deeper problem here.  What this debate really is about is what kind of people we are.  If a woman is stalked by an abusive ex, for instance, is she going to just hope the restraining order stops him, or maybe the police will get there in time?  Or will she take care of herself if need be.  And before you say you don't need an assault rifle to defend yourself, ask yourself this: what do you do when you have multiple attackers?  What if there is a riot?  At that moment—and I hope for your sake it never arrives—when you have to defend yourself, will you be allowed to have the tools needed to actually defend yourself?  Or will you just have to hope that someone from the government will save you?

At the beginning of this republic, we understood that freedom and independence were synonymous terms.  But ever since then, people have been encouraged to be more and more dependent on government.  Thomas Jefferson didn’t say, “A government big enough to give you everything you want is a government big enough to take from you everything you have.”  Gerald Ford did.  But it is right nonetheless.

And when you face the fear of having everything taken away from you, you are subject to the arbitrary power of the bureaucrat in front of you.  “Oh, want unemployment benefits?  Well, Mr. Jones, I am not entirely pleased with what you wrote on your blog this morning about the President.  And you know, there are many ways I could make this very difficult for you.”  It wouldn’t be legal, but by the time you got things sorted out—if you got it sorted out—a lot of harm could be done.  Better not to rock the boat, then, right?  And if you are a woman dependent on food stamps and the official who can cut you off demands a sexual favor...?

We have frittered away a great deal of independence for the comfort of this safety net.  And now they want to tell you that you should not defend your own life, your own property, your own family, with your own hands?  Governments ought to have the monopoly on legitimate violence, they purr in your ear.  And that might sound good in theory, but in reality that means you are not supposed to even defend your life or the life of your children.  What they want, then, is for everything, even your safety, to be a “good” handed to you by the government, rather than something you secure for yourself.

That is what these bans are really about, making you helpless and dependent on the state, even for your very life.

And we all know the state will never fail to protect you, right?

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.