Assault Weapon Ban Theater

Somewhat to my surprise, earlier this year, Illinois passed an assault weapons ban, justified in part as an attempt to end mass-shootings. The ban is already under attack in the courts and dozens of county Sheriffs have claimed they will not enforce it. Lots of people in the RKBA^[1]Right to Keep and Bear Arms community think it won’t survive court scrutiny, especially in light of the Bruen decision by the U.S. Supreme Court which was won by some of the same lawyers now suing the State of Illinois.

I took a quick look at the new law, and it seems like a pretty typical example of anti-gun political theater: It’s unlikely to actually achieve its goal of preventing mass shootings, but it will allow politicians to say “We did something about assault weapons!” in their campaigns for re-election. Unfortunately, this theater is painful for those who wanted one of the now-banned weapons.

The theatrics are obvious if you look at how assault weapons are defined within the act.

Amazingly, part of the language of the statute ^[2]I’m looking at Public Act 102-1116, which adds 720 ILCS 5/24-1.9 to the code. defines assault weapons by name, specifically listing about 150 different models of rifle, pistol, and shotgun. (You didn’t think they’d stick to just rifles, did you?) Here’s a sample:

(J) All of the following rifles, copies, duplicates, variants, or altered facsimiles with the capability of any such weapon:
(i) All AK types, including the following:
(I) AK, AK47, AK47S, AK–74, AKM, AKS, ARM, MAK90, MISR, NHM90, NHM91, SA85, SA93, Vector Arms AK–47, VEPR, WASR–10, and WUM.
(II) IZHMASH Saiga AK.
(III) MAADI AK47 and ARM.

[…]
(ii) all AR types, including the following:
(I) AR–10.
(II) AR–15.

[…]
(K) All of the following pistols, copies, duplicates, variants, or altered facsimiles with the capability of any such weapon thereof:
(i) All AK types, including the following:
(I) Centurion 39 AK pistol.
(II) CZ Scorpion pistol.
(III) Draco AK-47 pistol.
(IV) HCR AK-47 pistol.

[…]
(L) All of the following shotguns, copies, duplicates, variants, or altered facsimiles with the capability of any such weapon thereof:
(i) DERYA Anakon MC-1980, Anakon SD12.
(ii) Doruk Lethal shotguns.
(iii) Franchi LAW-12 and SPAS 12.

And so on, listing dozens and dozens of firearms.

I can’t think of any other time we’ve criminalized something by name rather than by some property or feature that makes it bad. Chicago’s spray paint ban lists the types of paint or chemicals you’re not allowed to have, but it doesn’t name any specific brands of spray paint. Anti-porn laws don’t list prohibited books and films by name. This is just not how you write sensible laws.

This lack of focus is a dead giveaway that the authors of the law aren’t really reacting to a problem they’ve bothered to define. They’re just doing something to say they’re doing something. They were mad at scary-looking guns, but couldn’t actually come up with a clear definition of the distinction between guns they liked and guns that made them mad, so they just named the ones they don’ t like.

As it turns out, the authors of this bill decided to have it both ways, because the bill also includes a section that prohibits firearms with certain properties. In particular, it defines an “assault weapon”^[3]They used to talk about banning “assault rifles,” but an assault rifle is a particular type of weapon that has a fairly well understood definition, and the weapons they wanted to ban aren’t actually assault rifles (which were effectively banned from civilian use long ago), so to avoid confusion laws now talk about “assault weapons.” according to a list of features that they find objectionable.

You might think this would satisfy my earlier objection that they have no principled reason for doing this, but it doesn’t, because their choice of features that define an “assault weapon” is pretty unprincipled.

Let’s take a look…

(A) A semiautomatic rifle that has the capacity to accept a detachable magazine or that may be readily modified to accept a detachable magazine, if the firearm has one or more of the following:

This is typical of “assault weapon” laws: Many provisions only apply to guns with detachable magazines. The magazine is the part of the gun that stores the ammunition that will be shot when the gun’s mechanisms move it into the firing position. The detachable magazine allows you to reload the gun by swapping in a full magazine rather than forcing you to refill a built-in magazine.

Detachable magazines allow the user to avoid the delay of reloading a magazine by carrying several preloaded magazines and swapping them in when the magazine in the gun runs out. This makes the gun a lot easier to load. It also makes the gun a lot easier to unload — just remove the magazine and eject any round in the chamber — way easier than extracting bullets one at a time from a fixed magazine. Because of this convenience, most modern semi-automatic pistols and rifles have detachable magazines.

In any case, according to this law, if a semiautomatic rifle has a detachable magazine, it becomes an “assault weapon” if it also has one of the features on the list that follows:

(i) a pistol grip or thumbhole stock;

This is great start, because it illustrates just how dumb most “assault weapon” laws are. Pistol grips don’t make a rifle more deadly. The reason so many modern rifles have pistol grips is because that’s just how human hands work. There’s nothing nefarious about it. Lots of tools have pistol grips, from power drills to blow dryers to grocery store UPC code scanners. And of course the law does not prohibit pistol grips if they are on actual pistols.

(ii) any feature capable of functioning as a protruding grip that can be held by the non-trigger hand;

A fore-grip just makes a gun easier to control, so it points where you want to and not where you don’t. Again, nothing nefarious, since accurate rifle shooting has always required a two-handed grip. In this example, the shooter has chosen to avoid the fore-grip and just grab the barrel shroud (more about those in a moment).

(iii) a folding, telescoping, thumbhole, or detachable stock, or a stock that is otherwise foldable or adjustable in a manner that operates to reduce the length, size, or any other dimension, or otherwise enhances the concealability of, the weapon;

This brings us to a weird and frustrating area of gun law. The stock on a rifle is the piece at the back of the rifle that you can brace against your shoulder. Some of them are fixed size, some can be adjusted, and some fold away completely:

There’s already a whole body of law defining the allowable shapes and sizes of firearms. For rifles, the barrel has to be at least 16 inches long, and the whole rifle has to be at least 26 inches long. Buy a gun with a shorter barrel, and you now have a short-barreled rifle. Under federal law, short-barreled rifles are merely specially regulated, and you can own one if you’ve jumped through the appropriate legal hoops, but here in Illinois they are illegal. And having the wrong equipment on your gun is a lot more serious than an equipment violation on your car. Possessing a short-barreled rifle is a serious crime.

Strangely, however, almost all handguns have short barrels, often under 6 inches, and yet they are completely legal. But if you try attaching a stock to a handgun, that turns it into a rifle, and it then has an illegally short barrel under federal law^[4]I think. Maybe. It’s complicated, and they keep changing how it works….

The reason for this is…there is no reason. Some people say it was just a mistake in the way the 1934 National Firearms Act was passed. So now tiny guns with tiny barrels are legal handguns, and long guns with long barrels are legal rifles, but if you mix and match, you go to jail. And with the “assault weapon” ban, Illinois has added a new twist: If you can fold the long gun into a shorter gun, you also go to jail.

If this doesn’t make any sense to you, then you understand it correctly. It certainly does nothing to stop mass shootings. But it’s provisions like this that turn gun laws into a legal minefield for gun owners.

(iv) a flash suppressor;

A flash suppressor is a little gadget at the end of the barrel that reshapes the way flaming gasses escape when the gun is fired to make them a bit less dazzling to the shooter, and perhaps harder for the enemy to see. This is not a real important feature in civilian shooting, but it can be important for military use during a nighttime firefight. On the other hand, it’s hard to see how a flash suppressor could make a difference during a mass shooting.

(v) a grenade launcher;

Aha! This is the first genuine “military weapon of war” feature on the list. A grenade launcher is basically a really big low-power shotgun that attaches under the barrel, except that instead of firing loads of shot, it lobs grenades. And certainly launching a string of grenades into a crowd would make any mass shooting much worse.

Of course, you need the actual grenades to make it dangerous, and those are heavily regulated. Also, I don’t think anyone has used a grenade launcher in a mass shooting. But I’ll grant that there’s not much civilian use for having one of these. Setting aside the rest of the “assault weapons” law, I’m willing to let the gun grabbers have this one…

(vi) a shroud attached to the barrel or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel.

This is a variation on the “protruding grip that can be held by the non-trigger hand” from earlier. Rifles are best fired with a two-handed grip, with one hand gripping the rifle near the rear, within finger-reach of the trigger, and the other hand gripping the forward end of the rifle to stabilize it. So every rifle has to have someplace in front of the trigger where you can grip it.

You can’t just grip the barrel. Not only is it too small in diameter to get a good firm grip, but it’s also going to get uncomfortably hot because it is filled with explosions. Early guns solved this problem with a piece of wood firmly mounted under the barrel to provide a good grip. This likely extended all the way back to form into the shoulder stock.^[5]That was just the obvious way to do it, because the earliest long guns were basically tiny cannon barrels mounted on pieces of wood to make them easier to handle. When plastics came along, gun makers started using them instead of wood, for all the reasons we use plastics.

Anyway, it’s hard to see how this makes a gun substantially worse for mass shootings.

The parts of the law for pistols and shotguns are similar. I do just want to mention a couple of pistol features that have implications for rifles:

(v) the capacity to accept a detachable magazine at some location outside of the pistol grip;

It’s hard to see how this makes a gun more dangerous, or easier to use in a mass shooting, than a magazine in the pistol grip. I think it’s possibly because this is a typical characteristic of a rifle design, so you’ve got a rifle-like pistol, which violates the long-gun/short-gun principle.

(vi) a buffer tube, arm brace, or other part that protrudes horizontally behind the pistol grip and is designed or redesigned to allow or facilitate a firearm to be fired from the shoulder.

This is yet another version of the long-gun/short-gun issue. Added something behind the pistol grip so you can brace it against your shoulder breaks the long guns must have long barrels rule.

As you can see, the “assault weapon” features listed in the assault weapons bill are a hodge-podge of random gun features. Because of that, gun makers have had no problem coming up with “featureless” rifles that operate the same way as any rifle with the prohibited features. Just eliminate the pistol grip, fore-grip, flash suppressor, and so on, and the weapon is legal. Alternatively, gun makers can eliminate the removable magazine — while still allowing the magazine to be replaced as long as you disassemble the rifle to get at it (basically one extra step) — and leave on all the other parts.

That the assault weapon laws can be so easily circumvented is likely the reason lawmakers resorted to listing rifles by name. Leave all the prohibited parts off an AR-15, and you can still argue it’s an AR-15.

That the assault weapon laws can be so easily circumvented is also a solid indication that they are not rationally tied to any goal or any clear meaningful definition of “assault weapon.” As far as I can tell, the unifying principle (if there is one) is that these parts are popular with people who buy modern rifles. And in the unlikely event that one of those modern rifles is used in a crime, it is likely to have some of these features, which is why lawmakers decided to ban them in their legislative theater.

It’s a bit like noticing that a lot of people who speed on the expressway are driving red cars, and then outlawing red cars in the hope of ending speeding.