Joe Biden Has Taken the First Step Toward Banning Assault Weapons. Now He Needs to Take One More.
Take a good look at the weapon on the top of this page. What do you call it? A rifle? An assault weapon?
Would you call it a pistol? A handgun? Probably not. In what universe would this ugly contraption be considered a pistol? Well, actually……
This is the type of gun that was used to slaughter 10 people in a grocery store last month in Boulder, Colorado. At the time of the shooting — one of 45 mass shootings in just the last month — there was a lot of confusion about the type of weapon the assailant used. Witnesses said the killer used a “rifle.” In the arrest warrant police called it a “possible AR-15,” the assault-style weapon of choice in many of the most deadly mass killings over the last decade. In earlier statements, police said he used a “pistol.”
Well, they can’t all be right, can they? Actually, they can.
This gun is a Rugar AR-556 Pistol. Even though it looks like a rifle, takes the same high-velocity ammunition as an AR-15 assault-style rifle, and has a large capacity magazine like a rifle, it’s a pistol, according to the manufacturer’s website.
If it was called a rifle, it would be illegal to own or carry one without first going through a regulatory obstacle course, which includes a full background check, fingerprinting, payment of additional fees and taxes, and registering it with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a process that would likely take many months. Instead, the Colorado killer bought his “pistol” just six days before he opened fire on innocent grocery shoppers and killed a police officer.
The gun would be illegal because the National Firearms Act of 1934 made rifles with barrels shorter than 16 inches subject to the stricter regulations. The barrel of the Rugar AR-556 is only about 10 inches long, but remember it’s considered a pistol, not a rifle, so the rules don’t apply. That may change if President Biden gets his way. More on that later.
The reasons why short-barreled rifles were effectively banned under the 1934 firearms act is instructive today. It’s a law from the Prohibition Era when the nation was outraged at gangland killings by Al Capone, John Dillinger, Baby Face Nelson and other criminals whose weapons of choice were Tommy guns and sawed-off shotguns. The guns were dangerous, easily concealable and served no sporting or self-defense purpose. (Sound familiar?)
The original firearms act proposed by President Roosevelt would have made virtually all newly purchased firearms, including handguns, subject to registration and additional regulations. But members of Congress and the National Rifle Association (NRA) pushed back, even though at the time the NRA’s president Karl Frederick told Congress, “I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.” Of course, that’s when the NRA only represented gun owners, not manufacturers.
But the regulation of fully automatic machine guns, sawed-off shotguns and short-barreled rifles survived in the new law. Attorney General Homer Cummings told a House hearing that the guns “ought never to be in the hands of any private individual. There is not the slightest excuse for it, not the least in the world, and we must, if we are going to be successful in this effort to suppress crime in America, take these machine guns out of the hands of the criminal class.”
The idea was not to ban the weapons outright, but to severely restrict their sales by imposing a $200 tax — about $3,800 in today’s dollars — for the purchase of a machine gun or sawed-off shotgun. And then if John Dillinger or any other thug was caught with one that was unlicensed, they would be subject to harsh penalties — imprisonment of up to 10 years or a $250,000 fine, or both.
It was, in everything but the name, a ban, and it was spectacularly effective. NRA-loving gun-rights advocates who say gun bans don’t work seem to forget that since passage of the 1934 law there have been only four known instances of automatic weapons (machine guns) used in crimes where someone was killed. Four. In almost 90 years. And there are no cases I could find in which a sawed-off shotgun was used. Compare that to 10 of the last 11 mass killings in just the past decade that killed dozens of people in which the common denominator was a semi-automatic AR-15 assault-style weapon — Orlando, Parkland, Sandy Hook, Aurora, and on and on.
In 1939 the U.S. Supreme Court heard the case of United States v. Miller and ruled that the National Firearms Act of 1934 that restricted short-barreled rifles did not violate the Second Amendment. The court said there was no evidence that a sawed-off shotgun “has some reasonable relationship to the preservation or efficiency of a well-regulated militia,” and thus “we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
Which brings us to the Rugar AR-556 Pistol, the weapon used in the Boulder massacre, today’s version of a short-barreled rifle. It’s technically a pistol, designed to be fired with one hand. But the addition of a “stabilizing brace” attached to the gun’s handle adds what looks like a rifle stock, making it almost indistinguishable from its bigger and slightly heavier AR-15 cousin (except for the shorter barrel). The stabilizing brace is supposed to strap to the shooter’s forearm to increase stability and accuracy or serve as an aid for shooters with disabilities. It wasn’t meant to be used to fire the gun from the shoulder like a rifle. But it wasn’t long before it became clear to just about everyone (except maybe the ATF) that the stabilizers have turned pistols into (illegal) short-barreled rifles.
In a 2017 article for Firearm News magazine, James Tarr revealed how shooters “quickly discovered that using one of these braces in a manner not intended by the designer suddenly turned awkward AR-15 pistols into ersatz SBRs (short-barreled rifles) both in appearance and functionality.” Tarr added that AR-15 pistols were “easier and cheaper to obtain” and didn’t necessitate filing “special paperwork to transport them across state lines.
“They look like one thing, but are another,” he wrote. “I guess that makes AR pistols with arm braces the first transgender firearms.”
A giant loophole in the gun laws had been uncovered.
Boulder was not the first high-profile mass shooting involving a stabilizing brace. The gunman who opened fire outside a Dayton, Ohio bar in August 2019 used an AR-type pistol outfitted with a brace and a double-drum magazine capable of holding 100 rounds of ammunition. Due to the power and lethality of the weapon, nine people were killed and more than a dozen injured in just under 30 seconds.
It didn’t get much attention but when President Biden announced several actions to combat gun violence earlier this month, he took aim at stabilizing braces. “The Justice Department, within 60 days, will issue a proposed rule to make clear when a device marketed as a stabilizing brace effectively turns a pistol into a short-barreled rifle (it is) subject to the requirements of the National Firearms Act,” Biden said in a statement.
In other words, guns with a stabilizing brace, and perhaps the stabilizing brace itself, would now be included in the National Firearms Act subject to the same paperwork, regulations and registration as a sawed-off shotgun, machine gun, short-barreled rifles, silencers and other “destructive devices.” If the experience with the 1934 law is any lesson, this would effectively end the sale of this popular assault-style weapon. And it appears that Biden can do this with a rules change, not an act of Congress.
It’s an important step, but no one should be under the illusion that it will severely decrease gun violence in America. For one thing handguns kill more people than assault-style rifles. On the other hand, since the ATF classifies the Rugar AR-556 pistol and guns like it as handguns, we may not know the full extent of the carnage this weapon has caused.
But Biden shouldn’t stop there. If he can make these “pistols” with stabilizing braces subject to regulation, why not do the same for all AR-15 assault-style weapons? Just take the definition of semi-automatic assault weapons used for the 1994 federal assault weapons ban and add them into the National Firearms Act along with machine guns and sawed-off shotguns (which would need the consent of Congress). You could apply the rule to new sales of the guns, but I would go even a step further and give current owners a year to register their assault-style weapons under the act or face strict penalties. It’s not a ban, people can still own the weapons if they want to go through the regulatory steps, just as they can own a fully automatic machine gun today. And as the Supreme Court ruled in 1939 it’s not a violation of the Second Amendment to regulate weapons that have no “reasonable relationship to the preservation or efficiency of a well-regulated militia.” Even Justice Scalia, in his often (mis)quoted opinion in the District of Columbia vs. Heller (which upheld an individual’s right to own weapons under the Second Amendment) nevertheless concluded that the Second Amendment “is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
The real end to gun violence won’t come until America gets over its romantic fixation with guns and gun violence. Our collective fetish with guns and the Second Amendment is fueled by popular culture in TV shows and movies, with considerable help from the embattled and disgraced NRA. It’s time for an attitude change. Restricting (or effectively banning) these assault-style weapons will help send the message that these are not playthings. They are weapons of war. They are not for “gun enthusiasts” or hobbyists, and certainly not for hunters and sportsmen and women. They are the weapons of choice for killers, street gangs, drug czars and terrorists. That’s it. If you want to join them, you can, just fill out the paperwork and stand on the side of career criminals like John Dillinger, Baby Face Nelson or El Chapo. Or you can stand with the rest of Americans who are fed up with gun violence and believe that our right to feel safe at the grocery store or where we work is far more important than your “right” to own a needless, senseless deadly weapon.