When will we follow New Zealand’s example? After the tragedy of the mosque shootings in Christchurch that took the lives of fifty Muslims, Prime Minister Jacinda Ardern announced that sales of assault and semi-automatic weapons are banned. If only our country could be so bold, so brave. While that prospect continues to be a long way off on a national scale, Dennis A. Henigan points to what has happened at the state level in his book “Guns Don’t Kill People, People Kill People”: And Other Myths About Gun Control. These three states have enforced policies to ban assault weapons. Are they successes? Yes. Do they solve our systemic nightmare with gun control in the long run? If only . . .
Gun control forces also have an impressive list of victories in the states. Since 1989, they have succeeded in passing Child Access Prevention (CAP) laws in eighteen states. These laws hold gun owners criminally responsible for leaving guns accessible to children. During that same period, the NRA also suffered key legislative defeats in New Jersey (legislation requiring that guns be “childproofed”), Maryland (legislation requiring internal locks on guns and limiting handgun sales to one per month), and Illinois (legislation requiring background checks for private sales at gun shows), while Colorado and Oregon (two states traditionally unfriendly to gun control) extended background checks to private sales at gun shows, both by voter referendum. Since the Newtown shooting, Connecticut, Colorado, Delaware, New York, and Washington State have extended background checks to all gun sales; Washington State did so by a referendum that won with 60 percent of the vote. Maryland enacted licensing and fingerprint identification for handgun sales.
The gun control movement has found its most fertile ground in California, where the NRA and its allies have suffered repeated setbacks. Since 1989, in addition to enacting a CAP law, California passed legislation to ban semiautomatic assault weapons, require background checks for all gun sales from all sources, restrict handgun sales to one per month to curb gun trafficking, require gun dealers to sell child-safety locks with guns, require handgun buyers to pass a safety test and be fingerprinted, mandate certain safety features on handguns, and ban .50 caliber sniper rifles. After most states had acceded to NRA demands to immunize gun sellers from lawsuits brought by municipalities, in 2002, California went in the other direction and repealed a twenty-year-old law protecting the industry from certain lawsuits. Considering that one of every eight Americans resides in California, and that it is the largest gun market in the United States, this record is deeply embarrassing for the NRA.
Also promising is an even newer technology known as “microstamping.” This involves the use of lasers to make microscopic engravings on the firing pin or breech face of a gun. When the gun is fired, these engravings are transferred to the discharged cartridge and can identify the make, model, and serial number of the firearm. This would permit the gun to be traced based on the spent cartridges left at a crime scene, but without the need for a database of ballistic fingerprints of all guns sold. California now requires all new semiautomatic pistols manufactured or sold in the state to be equipped with microstamping technology. Obviously, a federal law imposing such a requirement would be far superior to any state law.
Despite these state victories for gun control, it is fair to say that the nation is at a stalemate on the gun issue. To explain our inability to move decisively toward sensible gun regulation entirely in terms of raw political power, or the perception of that power, somewhat begs the question. Surely the NRA could not command such strength if there weren’t something in its message that resonates with large numbers of people. Is there something about the gun control debate itself that contributes to the policy paralysis on the gun violence issue? Speaking as a longtime participant in that debate, I believe the answer is yes.
The NRA cites New York City as another example of “registration leads to confiscation,” but actually New York’s gun laws prove the opposite. The city adopted a licensing and registration law governing rifles and shotguns in 1967, under Mayor John V. Lindsay. Confiscation allegedly arrived in 1991, but even the NRA’s own description of the 1991 law makes it clear that it only applied to “certain semiautomatic rifles and shotguns,” that is, assault weapons. The New York City assault-weapons ban required registered assault-weapons owners to surrender their weapons, render them inoperable, or move them out of the city. It would appear that the police were in pretty good position to enforce the ban against continued possession, given that the guns already were registered.
But legislation restricting assault weapons was passed only because its proponents were successful in arguing that assault weapons are fundamentally different than conventional firearms in terms of their greater fi repower, which makes them a greater threat to public safety in the hands of criminals, as well as inappropriate for self-defense in the home. The question for the NRA is this: If there is such a slippery slope from registration to confiscation, why hasn’t New York City banned continued possession of all the rifles and shotguns that are registered, instead of just the small minority of them that qualify as assault weapons? (During the early 1990s, ATF estimated that about one percent of the guns in circulation were assault weapons.) To the extent that the New York City experience teaches anything, it is that the registration of guns does not necessarily lead to their confiscation.
Many other examples can be offered of registration laws that have been on the books for decades without having prompted any move toward banning civilian gun possession or confiscating guns. The State of Pennsylvania, for example, has maintained records of handgun sales since 1931. The Pennsylvania State Police currently maintains a database of persons who lawfully purchase handguns in Pennsylvania. Although in theory Pennsylvania’s database would make it “easier” to confiscate guns should the state enact such radical legislation, nothing about Pennsylvania’s registration of handgun sales has moved the state even close to doing so.
Other states with some form of registration include New Jersey, Massachusetts, Michigan, Maryland, and California. Not one of those states has banned or tried to confiscate all handguns or long guns. Despite the fact that the authorities in those states have a pretty good idea of who owns the guns, all have been able to resist the temptation to demand their surrender.
District of Columbia v. Heller has no doubt been a disappointment to pro-gun partisans who viewed it as the beginning of the end of gun control. Indeed, the disappointment has been keenly felt within the Supreme Court itself. Two months before his death, Justice Scalia joined an opinion, written by Justice Clarence Thomas, dissenting from the Court’s decision not to review an appeals court ruling upholding the Illinois ban on semiautomatic assault weapons and high-capacity magazines. Their frustration with the lower courts’ application of Heller, and with their own Court’s consistent refusal to review those rulings, is palpable. After noting that several courts of appeal had upheld similar bans, Justice Thomas wrote that “noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents.” Supreme Court review is necessary, he wrote, to prevent the lower court “from relegating the Second Amendment to a second-class right.” In light of this dissent by Justices Thomas and Scalia, it now seems clear that the language in Heller affirming the presumptive constitutionality of broad categories of gun restrictions was a concession Justice Scalia was forced to make to achieve a narrow majority. It may well be a concession that nullified much of what Justice Scalia was trying to achieve in that landmark case.
About the Author
Dennis A. Henigan is director of legal and policy analysis at the Campaign for Tobacco-Free Kids and formerly vice president of the Brady Center to Prevent Gun Violence. He is the author of “Guns Don’t Kill People, People Kill People”: And Other Myths About Guns and Gun Control. Follow him on Twitter at @DennisHenigan and visit his website.