Saying It Is Doesn’t Make It So: Recurring Misconceptions About Assault Weapons

Nobody desires to see guns in the hands of others who would break the law and kill innocent people.  However, Americans enjoy a rich endowment of rights that are codified within the highest document of the land, The U. S. Constitution.

In response to the recent shooting in Pittsburgh, many Americans are not only advocating for more gun control but are demanding it. Nobody desires to see guns in the hands of others who would break the law and kill innocent people.  However, Americans enjoy a rich endowment of rights that are codified within the highest document of the land, The U. S. Constitution.  When freedom is concerned, it is important for American citizens to understand how recent court decisions have affected their rights and also how the courts arrived at their respective conclusions.

The court in District of Columbia. v. Heller ruled that it was an individual’s right to keep and bear arms for self—defense.  Within the last decade, beginning in 2011 with Heller v. District of Columbia (Heller II) and culminating in Kolbe v. Hogan in 2017, some federal appellate courts in separate instances have upheld challenged guns laws that ban “assault weapons.”  These laws generally try to capture semi-automatic rifles and shotguns that feed ammunition through a detachable device (such as a box magazine) and that utilize features such as pistol grips.  How did the appellate courts in these different instances come to their respective conclusions while subject to Scalia’s majority opinion under Heller? Common, shared language in those appellate decisions seems to indicate that the majority of judges in each court believed common misconceptions about the guns that are banned in the challenged statutes.

The misconceptions addressed in the following commonly seek to put the definition of an assault weapon under the umbrella of weapons that are called “dangerous and unusual.” Scalia used the term “dangerous and unusual” in Heller referring to, “M16 rifles and the like,” because there was a historical precedent for a ban on such weaponry already in play.  Therefore, because “M16—rifles and the like” were deemed “dangerous and unusual” by the Supreme Court, some federal appellate courts have recently been able to look back at Heller’s majority opinion and conclude that any gun that looks like or looks as menacing as the M16 could apparently be banned. Reasonable minds could perhaps differ on whether or not Heller’s statement of the law allows for an assault weapons ban.  However, there are some significant differences between M16s and guns labeled as assault weapons that warrant discussion.  Of the myths believed, there are three major misconceptions that stand out about the operation and functionality of assault weapons.

One such misconception is that assault weapons are not protected under the constitution because they are designed as weapons of war and are different from other protected guns in that respect. In Kolbethe court stated that AR-15s are “exceptionally lethal weapons of war” that are designed “to kill or disable the enemy on the battlefield.” One reason cited for the 1994-2004 federal assault weapons ban was that assault weapons were “military-grade” and therefore did not belong in the hands of civilians. However, that is not the precedent that American history has always followed.

Throughout history, many of the firearms designed for warfare become extremely popular civilian firearms too. The old saying that “necessity is the mother of invention” goes well in this scenario. There has never been a distinct category made between “military” firearms designed for battlefield use and “civilian” firearms designed for minimal self-defense, hunting, and target shooting. As a matter of fact, most civilian firearms were originally designed for military use. Take the iconic Henry lever-action repeater for example (a repeater is a gun capable of firing more than one shot before reloading). David Petzal, an editor for Field and Stream writes, “It was not until the Civil War that practical repeating rifles appeared.”  The Civil War was the reason that repeating rifles appeared, but it didn’t take long before repeaters were being used in the civilian world throughout the United States and eventually the world.

Part of the reason these firearms are protected is because they were in common use then and still are today by avid hunters and collectors of Western paraphernalia.  Heller held that one factor for determining whether or not a firearm is protected is by looking to see if it is in common use already by civilians.  Subsequently, the AR-15 has been deemed as America’s rifle with an estimated one out of five guns purchased being an AR-15 style rifle.  Therefore, if the standard for determining whether a firearm should be banned is based on the fact that it was developed for war, then perhaps lawmakers would have to ban the sidearms used by soldiers today and those used by soldiers in days gone by.  However, inHeller, the Supreme Court has already ruled that semi-automatic handguns are protected as a means of self-defense. Many handguns used by civilians for self-defense are similar to if not the exact same as the handguns used by soldiers today.

Another misconception is that assault weapons such as the AR-15 can “spray-fire” bullets.  Spray-firing refers to a firearm’s capability to shoot many bullets into one or multiple targets very quickly with little to no aim.  This myth is promulgated by a Violence Policy Center report calling semi-automatic rifles such as AR-15s “bullet hoses” with the ability to spray-fire.  This statement was adopted by the Seventh Circuit in Friedman v. City of Highland Park, Illinois when it upheld a challenged gun law banning assault weapons and large capacity magazines.  The D.C. Circuitalso adopted this myth in Heller II when upholding a ban on assault weapons in Maryland.  However, the idea of spray-fire (often credited with the M16’s use in Vietnam) is associated with fully automatic firearms which are used primarily in the military with some exceptions being granted to highly qualified people under strict regulations.

The AR-15 and other firearms like it (such as the civilian AK-47) that are common in the U.S. are semi-automatic only and therefore lack the ability to spray-fire.  A semi-automatic gun fires once every time the trigger is pulled.  An automatic firearm will continuously fire once the trigger is pulled and remains pulled.  AR-15 rifles and semi-automatic handguns (already held as protected under Heller)are both semi-automatic and therefore have comparable rates of fire because they both require a trigger pull for every single shot fired.  A Force Science Institute study showed that an inexperienced shooter could at bestfire three rounds per second with a semi-automatic handgun.  Since both semi-automatic handguns and AR-15 style weapons both operate in semi-automatic mode, the amount of time it takes to fire these firearms would be closely the same if not exactly the same.

The M16 and M4 carbine that the military uses today are fully automatic but do have selective fire capabilities which would allow them to be fired in semi-automatic mode when placed on that setting.  When placed on fully automatic mode, however, the rate of fire for those rifles can be anywhere from 700-900 rounds per minute. Using the cyclic rate of fire documented for an automatic M16 at 700-900 rounds per minute, an operator of an M16 can empty a 30-round magazine in 2 to 2.5 seconds.  A cyclic rate of fire is typically determined by measuring the total time from the first shot to the last shot, breaking that time into “splits” or time intervals between each shot.  The Bushmaster version of the AR-15 states in its owner’s manual that it has a typical rate of fire at around 45 rounds per minute. That equals roughly one round per every 1.3 seconds.

Kolbe and Heller II both concluded that an operator firing an AR-15 can empty a 30-round magazine in approximately five seconds.  However, a semi-automatic will only fire as fast as the operator can pull the trigger.  In order to achieve even 300-500 rounds per minute, an operator would need to pull the trigger at least eight times per second. Even if a person were able to pull a trigger eight times per second, in 2 seconds that person would only get off 16 rounds.  The M16 and M4, can empty a 30-round magazine in 2-2.5 seconds.  The world’s fastest shooter, Jerry Miculek, has been documented shooting five rounds in just under a second with an AR-15.  Again, Miculek is the world’s fastestshooter.  Miculek has also been documented shooting seven rounds per second from a semi-automatic handgun.  Therefore, the rate of fire from an AR-15 style civilian rifle is no faster and even slower than the rate of fire from a semi-automatic handgun fired by the world’s fastest shooter.

Despite the above, federal appellate courts have stated that the AR-15 can fire at rates comparable to those of the M16.  Granted, that would be true if the court was referring to the M16 when fired on the semi-automatic mode.  However, the courts were referring to the M16 in automatic mode.  Kolbe cited the House Judiciary committee report taken from a statement made by Dewey Stokes when considering the assault weapons ban that ran from 1994-2004.  From his testimony, the Kolbe court concluded that the rates of fire from an AR-15 and an M16 were close enough to classify the AR-15 and other semi-automatic assault weapons like it as too dangerous and unusual to be in civilian hands.

The last misconception is commonly believed by not only the courts but also by lawmakers in seven U.S. states that have banned assault weapons partlybased on their cosmetics.  To be fair, some states that ban assault weapons do include specific references to firearms. However, those specific references are based off of what the guns look like rather than how they operate.  For example, the Connecticut ban, as well as some others, did not ban the standard Ruger Mini-14 which is also a semi-automatic rifle and takes a detachable box magazine similar to the AR-15.  Both guns are comparable in lethality with the AR-15 shooting 700-900 rounds per minute and the Ruger Mini-14 shooting 750 rounds per minute.  However, the standard Ruger Mini-14 lacks a pistol grip that the AR—15 or AK—47 would come with.

The misconception is that features of assault weapons, such as pistol grips, are “military” features that give these firearms extra firepower.  Additionally, some of these features are found on other types of firearms that would be outside the assault weapon category.  Some modern shotguns, used primarily for hunting, include pistol grips for increased stability when taking a carefully aimed shot.  Part of being an ethical hunter is taking game as quickly and painlessly as possible.  Therefore, it is no surprise that modern hunting firearms would include such features.

Focusing on pistol grips, the court in Heller IIcited Brian Siebel’s statement that, “pistol grips on assault weapons help stabilize the weapon during rapid fire and allow the shooter to spray-fire from the hip position.”  Not only did Heller II state that pistol grips aid in firing from the hip, but the court in N.Y. State Rifle and Pistol Association v. Cuomo noted that, “[t]hese features (pistol grips) aid shooters when ‘spray firing’ from the hip.”  However, pistol grips were placed on these firearms so that the centerline of the rifle would push straight back into the shoulder of the operator when the rifle recoiled so that the front end of the barrel wouldn’t be as prone to kick up and throw the operator off target.  Because the centerline of the rifle is raised higher, pulling the trigger using the conventional method of grabbing the rear stock would be awkward and render the firearm difficult to fire with accuracy and comfort.  The use of a pistol grip on an AR-15 style weapon simply makes the firearm usable rather than substantially more lethal than other firearms.

Features such as bump stocks, grenade launchers, and bayonet mounts are all features that are accessories.  In other words, they are “add-ons” that couldmake the firearm abnormally dangerous.  Consequently, those features might pose such a danger that the courts could rule that the government does have a substantial interest in keeping them out of civilian hands.  Recently, in July of 2018, Judge David E. Cain of Franklin County, Ohio ruled that Canton’s ban on bump stocks was unconstitutional under the state’s constitution even though the relevant law defined the bump stock as an “accessory.” He reasoned that it was a “component” of the firearm rather than an accessory because it was attached to the firearm.  Whether he was right or not is still debatable.  Just before Judge Cain’s decision in Ohio, the ATF submitted a proposal to regulate bump stocks by treating them as machine guns under the National Firearms Act of 1934 with the approval of President Trump.  It seems the future of these items is at best still uncertain.

Today’s political climate in America is almost so thick with tension that one could almost cut it with a knife.  Misconceptions about issues tend to wreak havoc in all areas that raise bitter dispute.  Areas such as the long-standing abortion debate, the current immigration crisis, and recent results from midterm elections.  All of the previously mentioned areas of dispute along with the gun-control debate seem to breed contempt for civil discussion between opposing sides about the issue.  Part of the beauty of this country is that Americans have the ability to change their laws through the political process, and America may one day forego assault weapons altogether if there is a common consensus.  However, perhaps laws shouldn’t be changed unless the people making those decisions have all the facts at their disposal.  Therefore, the goal here is to educate rather than dictate because just saying it is doesn’t necessarily make it so.

Caleb Wheeler
About Caleb Wheeler (3 Articles)
Caleb is a third-year law student at Campbell Law and currently serves as a Staff Writer for the Campbell Law Observer. Being from the Western part of North Carolina, Caleb calls Lincolnton, North Carolina, home. He completed undergraduate studies at Pensacola Christian College where he obtained a bachelor’s degree in History with a minor in English. After his first year in law school, Caleb interned at Calhoun Law where he took part in matters of civil litigation. Caleb has also served as the Vice-President of the Christian Legal Society where he leads a Bible study for men. Caleb has also interned with the Williams Law Firm in Hickory, NC, partaking in real estate transactions and other transactional work related to business law and estate planning. His interests are criminal defense, real estate transactions, nonprofits, business law, and estates.
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