In September 1994, President Bill Clinton signed an assault weapons ban into law. Some in the gun industry were distraught. “We’re finished,” Ron Whitaker, then the chief executive of Colt, told several other members of a firearm trade association. Colt made substantial profits from the AR-15, the quintessential assault rifle. Whitaker, it turned out, was wrong. The AR-15 was not finished. It was just getting going.
In the face of a ban that turned out to be laughably easy to evade, the industry kept making civilian versions of military rifles. The prohibition actually helped transform what had been a marginal product for most manufacturers into a gun-rights poster child, celebrated by the National Rifle Association and sought-after by a much bigger share of the gun-buying public. The law was written to last just 10 years, and in 2004 this porous excuse for gun regulation expired.
Now, in the wake of the elementary school massacre in Newtown, Conn., President Obama and congressional Democrats are calling for a renewed ban on assault weapons. Proponents of the legislation vow they will do a better job this time. No loopholes, they promise. Skepticism is warranted. Senator Dianne Feinstein, author of the 1994 law, has conceded the bill she plans to introduce early next year will “grandfather in” weapons legally possessed on the date of enactment. Moreover, the California Democrat has said the legislation will exempt 900 weapons used for hunting and sporting purposes.
There you have the Democrats’ opening bid: Nine hundred exemptions, and millions of pre-ban weapons to remain in private hands. The legislative fight hasn’t even begun, and gun-control advocates are surrendering the all-important fine print.
While politicians in Washington are clearing their throats, the marketplace has responded. Dick’s Sporting Goods (DKS), a national chain, suspended sales of a handful of semiautomatic rifles similar to the one used in the Connecticut rampage. Cerberus Capital Management, a $ 20 billion private equity firm, announced that, as a result of investor pressure, it will sell its controlling interest in Freedom Group, a North Carolina-based conglomerate of gun and ammunition makers. Hollywood, for the moment, is backing away from some gun- and death-themed television reality shows.
Maybe this time is different—different from Columbine, Virginia Tech, Tucson, and Aurora, all of which were followed by calls for new restrictions on guns, and none of which led to any. Perhaps 20 tiny coffins will prove a catalyst for compromise previously beyond the reach of our polarized politics. Sounding uncharacteristically conciliatory, the NRA scheduled a press conference for Dec. 21, saying it would make “meaningful contributions” to avert another Newtown.
Like abortion, guns evoke irreconcilable ideological cleavages. We live in a big country. Our conflicting values cannot all be neatly squared. And if history provides a guide, the latest carnage could provide little more than an occasion for renewed culture war. That would be a shame, because there are steps that a majority of Americans ought to be able to agree to, even without resolving our deep-seated societal conflict over whether firearms represent self-reliance or a threat to children (or both). The Newtown tragedy is a chance for opposing sides to focus on potential consensus and enact reforms that would do what everyone says they want: keep guns out of the hands of criminals and psychotics.
This sad occasion is not, however, going to change the fundamental reality that the U.S., for better or worse, is a gun culture. Nearly half of American households have one or more firearms, according to Gallup. The hard truth for gun foes is that firearms are out there, and they’re not going away.
The defunct 1994 ban on assault weapons offers an instructive place to begin any serious conversation, if for no other reason than Democrats are placing so much emphasis on reviving it. Among its many flaws was a focus on particular rifle models and cosmetic features, such as whether the guns had a bayonet mount or flash suppressor. This emphasis on form over function allowed manufacturers quite easily to “sportify” the prohibited models, and voilà: A banned weapon became unbanned.
An even more fundamental weakness was that the law created confusion over just what makes a weapon an “assault weapon.” As the term has come to be used, it denotes a military-style rifle that fires one round for each pull of the trigger. These rifles are called semiautomatic because with each shot fired, they eject the empty shell case and load a new round into the firing chamber.
Fully automatic machine guns, by contrast, fire continuously as long as the trigger is held. They generally aren’t available for sale to civilians. Although they may have a tough military look, semiautomatic assault weapons, shot-for-shot, are no more lethal than Grandpa’s Remington wooden-stock deer-hunting rifle. Arguing about whether a particular rifle is an assault weapon makes no sense. Worse, it creates the impression among firearm advocates that gun-control proponents either don’t know what they’re talking about or that a ban on assault weapons is actually a precursor to broader prohibition. By labeling her forthcoming legislation an “updated assault-weapons bill” and hearkening to the misbegotten 1994 law, Feinstein undercut her credibility right out of the box.
The sole characteristic of a semiautomatic rifle that makes it especially deadly is ammunition capacity. The Newtown killer used multiple 30-round magazines to fire scores of times in a matter of minutes, according to police officials. Magazines are the spring-loaded containers of bullets that snap into the bottom of a rifle or the grip of a pistol. If a shooter couldn’t obtain large mags, he’d have to reload more often, possibly limiting bloodshed.
Feinstein says her bill will ban the manufacture, sale, or transfer of magazines holding more than 10 rounds. If she’s smart, she’ll streamline the legislation to focus strictly on magazine capacity, rather than inviting another confusing fracas over what qualifies as an assault weapon. Even if the bill does zero in on magazines, though, to make such a limitation meaningful, Congress would have to ban the possession of large magazines, not just the sale of new ones. Otherwise, the tens of millions of big magazines already on the market will provide an ample supply to future mass killers. Are lawmakers prepared to send sheriffs and police out to take away privately owned magazines exceeding 10 rounds? In the 1990s the answer was no. It’s doubtful that’s changed. (Imagine being the Texas or Florida cop given that assignment.)
That’s why a more promising response to Newtown would be one that stresses keeping guns out of the hands of criminals and the dangerous mentally ill. These are goals that the NRA cannot credibly oppose. Which does not mean the NRA will cooperate. The gun lobby thrives on controversy, not compromise. It needs enemies to raise money. Legislation framed as crime control, rather than gun control, stands a better chance of winning over firearm owners and Republican politicians.
Tightening the faulty federal background-check system ought to be the top priority on Capitol Hill. No serious person objects to the FBI-coordinated computerized record checks that prevent sales of firearms to felons, domestic-violence misdemeanants, and those formally deemed mentally ill. But the background check applies only to sales by federally licensed firearm dealers. Nonlicensed “private collectors” may sell to strangers, no questions asked. By some estimates, 40 percent of all gun transfers take place without background checks: an invitation to criminals if ever there was one. If Democrats lined up a battalion of police chiefs to demand universal application of background checks as a way to deter crime, they’d have an appealing pitch to the American public.
Would enactment of such a reform stop the determined school shooter, or even the violent career criminal, from obtaining weapons on the black market? No. The passage in the 1990s of the background-check and assault-weapons laws had negligible effects on crime, according to Mark Kleiman, a professor of public policy at the University of California at Los Angeles and one of the country’s most independent-minded criminologists. An improved background-check system would not have prevented the Newtown shooter from getting hold of his mother’s legally acquired guns. Mass killers tend to be young men who, despite deranged minds and evil hearts, prepare carefully. Some have clean records before going berserk. Others obtain their weaponry from relatives or friends. Fixing background checks is still worth doing. It might deter some criminals, and the imposition on Second Amendment rights would be slight. To sell a gun to a neighbor, the owner could be required to conduct the transaction via a local licensed dealer, who, for a modest fee, would run the computerized check.
To make a universal record check more effective, lawmakers could begin what would be an arduous process of reviewing and reforming how we deal with serious mental illness in the U.S. Some steps seem embarrassingly obvious. At both the federal and state level, there are numerous agencies with mental health information that has not been entered into the background-check system. The president could remedy that with executive orders and additional financial incentives for states to comply. Then there is the much more daunting challenge of what to do about the unintended legacy of deinstitutionalizing the dangerous mentally ill.
In the 1970s and 1980s, the U.S. emptied many state mental hospitals because they provided dreadful care or none at all. We didn’t follow through on the promised community-based treatment. As a result, we created a de-facto policy of waiting until seriously mentally ill people commit crimes and then consigning them to prison. Over the past half-century, the number of psychiatric beds in the U.S. has decreased to 43,000 from 559,000, even as the overall population increased, according to the Treatment Advocacy Center in Arlington, Va.
Other important research suggests that more effective treatment of the mentally ill can contribute to lower homicide rates. Steven Segal, a social work professor at the University of California at Berkeley, published a paper in November 2011 in the journal Social Psychiatry & Psychiatric Epidemiology showing that increased access to inpatient psychiatric care, better-performing mental health systems, and more flexible criteria for involuntary civil commitment account for 17 percent of the state-to-state variation in homicide rates.
One of the most troubling observations I’ve encountered since Newtown came from Dr. Carl Bell, a psychiatrist and professor at the University of Illinois at Chicago. Shortly after the massacre, Bell and I appeared as guests on the National Public Radio program Tell Me More. The soft-spoken academic interrupted the conversation about the nuances of gun control to point out that random mass shootings are typically suicides augmented with multiple murders as a way of dramatizing the shooter’s pain and self-hatred. Copious amounts of research show that media publicity of suicides leads to copy-cat crimes. “It seems to me,” the professor politely interjected, “that the more we report that this sort of assault weapon was used, that this person had this kind of bulletproof vest, that this person entered the school this way—that gives other people who are depressed and suicidal and want to take a whole bunch of people with them the knowledge on how to pull it off.” The media, Bell said, should self-censor their sensational, detailed coverage of mass shootings.
That’s not going to happen—for the same reason that the inevitable commissions and hearings on violence in films and video games will conclude that there’s little for government to do about bloodshed in entertainment. The First Amendment protects a robust right to expression. A parallel exists with the Second Amendment, another emblem of freedom, forged in the 18th century yet still hallowed generations later. These uniquely American rights come with tremendous responsibilities—and haunting costs.
The bottom line: Stricter background checks are a start—but better care for the mentally ill will be more effective at reducing the number of shooting sprees.
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