Batman Shooting: Assault Weapons Ban Would Not Have Stopped James Eagan Holmes

For better or for worse, the political implications of Friday's tragedy in Aurora have manifested themselves. Gun control is being seriously debated by serious (and a few seriously pitiful) people. Not surprisingly, the 1994 Federal Assault Weapons Ban, which failed to secure renewal in 2004, has been a critical part of a lot of discussions. As a pretty staunch gun control supporter, my stance on the ban has been fairly unshakable over the years. Over the past few days however, I've come across enough facts to decisively change my mind. 

Here's the truth: despite what others have suggested over the past few days, it is highly unlikely that the renewal of the Federal Assault Weapons Ban would have changed the outcome of what took place on Friday. There are important — and to gun control advocates like myself, frustrating — reasons for this.

First, a step back: what was the ban trying to ban in the first place? Well, it's complicated. A centerpiece of the law was the novel distinction made by Congress between the intentionally broadly defined category of assault weapons and the narrower category of  assault rifles. Assault weapons, according to the ban, are semiautomatic guns of any type (pistol, rifle, or shotgun), meaning they fire one shot per trigger-pull and reload themselves. Conversely, assault rifles are fully automatic rifles which fire more than one shot per trigger-pull and reload themselves. The restrictions in the Ban were placed on assault weapons and assault weapon ammunition. Assault rifles and their ammunition were, for the most part, made illegal for civilians without federal permits by the National Firearms Act of 1934 and the Firearm Owners Protection Act of 1986 — two pieces of legislation with controversies of their own.

So, to be clear, the Assault Weapons Ban dealt with a very specific class of firearms and not with high-powered or high-volume guns in general.

James Holmes took four weapons to the Aurora Century 16 on Friday: two Glock .40 mm handguns, an 870 Remington 12-gauge shotgun, and a Colt AR-15 semiautomatic rifle, which actually saw use that night. Of the four, only the AR-15 (and, importantly, the 100 round magazine of ammunition it was loaded with) would have been subject to the ban's restrictions.

However, Holmes still would have been able to obtain the AR-15 and the 100 round magazine or a gun and ammunition of comparable power even if the Ban had been renewed. An in-depth University of Pennsylvania study commissioned by the National Institute of Justice underscores three critical loopholes in the ban that would've allowed for this:

1) Only 18 assault weapon models were explicitly banned. Exact copies or knockoffs of these 18 were also banned. However, copies made with slight cosmetic changes (the addition or removal of certain accessories and add-ons) were left exempt. So even though Holmes' Colt AR-15 was one of the 18 models that would have been explicitly banned after the law's renewal, Holmes still would have been able to legally purchase, say, a Colt Match Target H-Bar rifle — a model Colt introduced after the Ban went into effect with the same specifications as the AR-15 minus a few extras — like a mount for a bayonet.

2) The legality of models outside the 18 specifically mentioned was contingent upon what the law referred to as "features testing." Simply put, the law laid out a mishmash of military-style accessories and modifications (grenade launchers, special stocks, etc) commonly used with semiautomatics and stipulated that any model utilizing more than two of these features was prohibited. Any model with just one or none of these "features" was exempt. Here, again, there would have been space for Holmes to obtain a weapon potentially just as powerful as the AR-15.

3) The Ban only applies to assault weapons and ammunition manufactured and/or imported after the legislation's ratification. Even if the Ban had been renewed in 2004, Holmes would have been able to purchase literally any kind of assault weapon he wished provided that it was built before the law came into effect. The same, unfortunately goes for the kind of ammunition he used: even though Holmes' 100-round magazine far exceeded the 10 round limit stipulated by the Ban, Holmes still could have legally purchased a magazine of the same size manufactured before the ban.

In short, there is nothing in the Assault Weapons Ban to suggest that its renewal would have made very much of a difference last week. The loopholes, perhaps intentionally, were far too wide. Holmes would have had many options and it is likely that many still would have died.

As far as the ban's ostensible effects on violent crime in general go, the facts don't seem to provide easy answers. Chief among the statistics cited by ban supporters is a 2004 report by the Brady Center to Prevent Gun Violence which highlights a 66% drop in the proportion of assault weapons tied to crime from pre-Ban figures by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Most observers, however, concur with the conclusion reached by the University of Pennsylvania study:

“We cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence."

This ultimately makes a lot of sense. As the study also says, assault weapons were only used in 2%-8% of gun crimes before the ban to begin with. And although the impact of the ban's restrictions on LCMs, which were used in 14-26% of gun crimes prior to the ban, probably had a larger impact than restrictions on the weapons themselves, any positive effect the Ban could have had on that front would have been significantly undermined by the sheer number of LCMs the law left exempted, nearly 30 million according to the study. The number of assault weapons left exempted, over 2.6 million according to 2005 reporting from the New York Times, more than likely attenuated the Ban's impact as well.

And so it seems that the Federal Assault Weapons Ban was always, latently, too hollow a law to live up to the force and promise of its own name.  It is obvious that during the ban's 10-year existence, violent criminals had the chance to exploit in reality the same oversights and grey areas Holmes that could have taken advantage of hypothetically. Gratefully, some key ideas as to what could have been done better seem clear. The confiscation or purchase by the government of pre-ban weapons and ammo on the market should have been an option. Steps should have been taken to regulate gun manufacturers in order to clamp down on the production of knockoffs and exploitative modifications. Et cetera. 

In general, it would be prudent for gun control advocates to recognize and learn from the ban's flaws with the hope of crafting better regulations in the future. Using it as a clutch to return to during times like these — these rare, brief brushes with the darkly obvious in which, thankfully, having the guts to say "guns are dangerous" doesn't cost you as much — is counterproductive. Gun control will have a future in this country as long as its advocates remain reflective about and not beholden to past initiatives. It is the only way we can prove to gun absolutists that flawed policies like the ban don't negate solid principles.