OPINION

Assault weapons in the cross hairs

Congress should re-enact the Federal Assault Weapons Ban and repeal a law protecting gun manufacturers from civil liability.

, The National Law Journal

   | 15 Comments

Congress should re-enact the Federal Assault Weapons Ban and repeal a law protecting gun manufacturers from civil liability.

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What's being said

  • Eric Schwarz

    I have a simple question - If a gun manufacturer should be responsible for its misuse - Should a knife manufacturer be responsible when it is used to stab someone? Should an alcohol manufacturer and a car manufacturer be held responsible when someone purchases both items, drives drunk, and kills someone? Where do we draw the line?

  • Eric Schwarz

    I have a simple question - If a gun manufacturer should be responsible for its misuse - Should a knife manufacturer be responsible when it is used to stab someone? Should an alcohol manufacturer and a car manufacturer be held responsible when someone purchases both items, drives drunk, and kills someone? Where do we draw the line?

  • BHirsh

    One would presume that a law professor knows what precedent is. That being the case, why is this person advocating a ban that can't possibly pass constitutional muster?



    U.S. v. Miller (1939), cited in D.C. v. Heller (2008), established a two-pronged test to determine which types of small arms are "protected" under the Second Amendment. "Protected" arms must be "in common use", and must "bear[s] some reasonable relationship to the preservation or efficiency of a well-regulated milita."



    The author states, as if these attributes fail the test, "Semi-automatic weapons — such as the Uzi, the TEC-9, some AK-47s and the Colt AR-15 — have the capacity to kill a large number of people in a short amount of time. In fact, they have no other purpose. Semi-automatic weapons are not used to hunt; they would obliterate the animal. They exist to fire multiple bullets in quick succession, a function that is useful only in war."



    Please demonstrate how AR-15's et al fail the Miller test, i.e. that they are not "in common use", and that they do not "bear some reasonable relationship to the preservation . . . of a . . . militia."



    By definition, these weapons meet those two criteria PRECISELY. Further, their attributes are absolutely necessary to fulfill the primary (but not the only) reason for the amendment's existence.



    So again I ask, what is a law professor doing advocating ultra vires actions by the legislature that are clearly impermissible under U.S. v. Miller, D.C. v. Heller, and McDonald v. City of Chicago?



    As to torts, a person responsibly exercising a lawful act (self-defense) cannot be held for that act. To insist otherwise is pure lunacy. As to product liability, if the product is legal and functions as designed, the manufacturer cannot be held liable for its misuse, either.



    Suggestion: Check the water supply at Irvine. Someone may have introduced hallucenogenics into the reservoir.

  • Steuart

    Professor Chemerinsky I am sure understands the law, but is I sense that he is unfamiliar with the technology of the firearms used in the shootings that he invokes as a basis for a ban on assault rifles. The firearms used in the Gifford's assault were handguns, as were the firearms used at the Virginia Tech and Fort Hood assaults. The facts of the Aurora shootings were that the large capacity magazine of the assault rifle jammed the rifle, and it appears that more casualties were caused by the shotgun than by any of the other firearms used. Further, I would point out (from extensive personal observation) that engagement of targets in the dark, with an assault rifle is quite an art and few soldiers (even with much practice) are very good at it (for most people, a shotgun should be the weapon of choice in the dark). As to the claim that they are "product that serves no purpose but to kill people and each year causes many deaths" that is a bare assertion unsupported by evidence; from personal observation, I know many people who own and use what are characterized as assault rifles, who have derived many hours of enjoyment from shooting them in a responsible manner.

  • jack burton

    Erwin sounds much like a five year old on a tricycle attempting to give advice to NASCAR racers about winning race strategy. He is living proof that lawyers speaking outside their area of expertise are nothing more than hacks using their reputation in one field to buffalo people about something entirely different.

    Read http://jack-burton.hubpages.com/hub/Assault-Weapons-Evil-Black-Rifles-or-perhaps-not and in five minutes you'll know more about so called assault weapons than the author has learned in a lifetime.

  • jack burton

    Erwin sounds much like a five year old on a tricycle attempting to give advice to NASCAR racers about winning race strategy. He is living proof that lawyers speaking outside their area of expertise are nothing more than hacks using their reputation in one field to buffalo people about something entirely different.

    Read http://jack-burton.hubpages.com/hub/Assault-Weapons-Evil-Black-Rifles-or-perhaps-not and in five minutes you'll know more about so called assault weapons than the author has learned in a lifetime.

  • Michael

    The better ban would be on liberals teaching in law schools! They do a lot more damage to the national fabric than assault weapons.

  • Darren McKinney

    Dean Chemerinsky again proves himself to be among the most irrelevant people in American law. All-but-bankrupt California needed to fund one more law school for the dean to run like it needs another major earthquake. Then again, if that next earhtquake happens to swallow up the dean and his white elephant school of law at UC Irvine, maybe the once Golden State could begin to regain some of its lost luster.

  • strikethat

    Hundreds of thousands of so-called "assault rifles" are owned by law-abiding Americans. Is it logical to believe that those people own and use those rifles for no purpose except to kill others? In reality, those rifles are widely used for shooting targets, and, yes, for hunting. That a handful of crazies create tragedies, doesn't justify banning something that is safely and legally used by hundreds of thousands and even millions of people. Ill advised people render ill advised opinions.

  • tm

    My god is this a press release from the Brady group?



    Doesn't anyone at law.com do fact checking before you print anything?



    This is the worst gun control article I have ever seen. It is full of factual errors.



    All in all the author should retract this article because of the many factual errors.

    He clearly knows nothing about guns. The article is SLANDER against the guns, Makers and owners and should not be on this website.





    The assault gun ban was a cosmetic ban only it was impossible for it to have any effect and if someone says it did that's a clear giveaway that the author is not telling the truth. FBI statistics even prove it.



    The assault gun ban banned Semi-automatic rifles able to accept detachable magazines and two or more of the following:

    Folding or telescoping stock

    Pistol grip

    Bayonet mount

    Flash suppressor, or threaded barrel designed to accommodate one

    Grenade launcher (more precisely, a muzzle device which enables the launching or firing of rifle grenades, though this applies only to muzzle mounted grenade launchers and not those which are mounted externally).



    So makers just removed all but 1 of the items from the list and kept selling them. Mostly they just sawed off the Bayonet mount and they became legal to sell. Perhaps the author can explain how that affected crime in any way.



    "t is outrageous that a product that exists for no purpose other than to kill has an exemption from state tort liability."

    I have seen that statement before it was copied from pro gun control literature however it is untrue. These guns are used for sports and self defence they are also used for hunting.



    "Semi-automatic weapons — such as the Uzi, the TEC-9, some AK-47s and the Colt AR-15 — have the capacity to kill a large number of people in a short amount of time. In fact, they have no other purpose. Semi-automatic weapons are not used to hunt; they would obliterate the animal. They exist to fire multiple bullets in quick succession, a function that is useful only in war."



    This paragraph also appears to have been copied since I have seen it before. It is also a blatant lie.

    1 Semi-automatic weapons are used by hunters.

    2 Assault guns are identical to hunting riffles they only look like military guns they do not shoot faster than hunting rifles and are not more powerful. In fact they use a smaller bullet than most hunting riffles. The truth is that hunting riffles fire at the same speed and are more powerful than Assault Guns.

    3 Assault guns do not obliterate the animal in fact because of the smaller bullet many hunters prefer the more powerful hunting riffles.



    These guns a perfect home defence guns because just the look of them scares away people.



    We have enough literature online now that no one should be repeating these lies anymore. I must assume that anyone who still does is part of the disarmament movement . Gun control Kills.

  • Aaron Nelson

    The naive idea that "the only use for semi-automatic firearms is to kill lots of people quickly" is infantile and quite plainly wrong. But people should not expect higher level reasoning from pseudo-intellectuals such as the author. Guns play an important role in a free society but Dean Chemerinsky is clearly not an advocate of a free society. Freedom is much too perilous for a ninny like the Dean who prefers to have his underlings do the heavy lifting and dirty work for him.

    You see the Dean prefers to be protected by more rugged men then himself. Men who are not too cowardly to stand up and resist evil when it finds them. The truth is the Dean is frightened of us, his his fellow men. In his mind we are savages who can not be trusted with weaponry. If it were up to him he would likely even send his civil servants out to round up the firearms currently in the possession of us savage American civilians. What regard should elites such as himself have for the private property of savages anyway, right Dean. Savages should not have the capacity to resist their masters. The Dean prefers that we Americans be lorded over by whatever government that should rise to power. Or maybe not, maybe the Dean has a crystal ball and can clearly see that never again will corrupt leaders rise to power in America, or in the world.

    The truth is, semi-automatic firearms do more then just "kill lots of people quickly." Actually semi-automatic firearms defend lots of people quickly. Semi-automatic firearms preserve lots of liberty quickly. Semi-automatic firearms ensure lots of peace and prosperity quickly. No, we ordinary Americans are not the savages we need to be afraid of. The real savages are people like Erwin Chemerinsky who would lead the nation towards civil war from the comfort of their office chairs simply because they are cowardly and fearful of the perils of freedom.

  • Aaron Nelson

    The naive idea that "the only use for semi-automatic firearms is to kill lots of people quickly" is infantile and quite plainly wrong. But people should not expect higher level reasoning from pseudo-intellectuals such as the author. Guns play an important role in a free society but Dean Chemerinsky is clearly not an advocate of a free society. Freedom is much too perilous for a ninny like the Dean who prefers to have his underlings do the heavy lifting and dirty work for him.

    You see the Dean prefers to be protected by more rugged men then himself. Men who are not too cowardly to stand up and resist evil when it finds them. The truth is the Dean is frightened of us, his his fellow men. In his mind we are savages who can not be trusted with weaponry. If it were up to him he would likely even send his civil servants out to round up the firearms currently in the possession of us savage American civilians. What regard should elites such as himself have for the private property of savages anyway, right Dean. Savages should not have the capacity to resist their masters. The Dean prefers that we Americans be lorded over by whatever government that should rise to power. Or maybe not, maybe the Dean has a crystal ball and can clearly see that never again will corrupt leaders rise to power in America, or in the world.

    The truth is, semi-automatic firearms do more then just "kill lots of people quickly." Actually semi-automatic firearms defend lots of people quickly. Semi-automatic firearms preserve lots of liberty quickly. Semi-automatic firearms ensure lots of peace and prosperity quickly. No, we ordinary Americans are not the savages we need to be afraid of. The real savages are people like Erwin Chemerinsky who would lead the nation towards civil war from the comfort of their office chairs simply because they are cowardly and fearful of the perils of freedom.

  • Hal Jordan

    Where to begin, given the mountain of errors in this article?

    "Imagine a product that serves no purpose but to kill people and each year causes many deaths."

    Given that the numbers of "assault" weapons that are used for collecting, hunting, and target shooting outnumber those used for killing by well over 1000 to 1, this imaginary point remains just that...imaginary. I would also point out that killing people is not necessarily wrong. It depends upon who is being killed, and under what circumstances.

    "Not, though, if the product is an assault weapon."

    A contrived term used for political purposes.

    "James Holmes allegedly went into an Aurora, Colo., movie theater with an arsenal that included a semiautomatic assault rifle and 6,000 rounds of ammunition."

    Setting aside the use of the loaded word "arsenal" (3 guns comprise an arsenal? Please.), Mr. Holmes did not go "into" the theater with 6,000 rounds of ammunition. The vast majority of this ammunition was in his apartment.

    "If Holmes had used a handgun, far fewer would have been hurt or killed before he was stopped."

    There are handguns with identical magazine capacities and rates of fire as the AR-15 style rifle he used.

    "Semi-automatic weapons are not used to hunt; they would obliterate the animal."

    Laughable. A semi-automatic weapon is no more powerful than a single-shot weapon chambered for the same round. Hunters use *millions* of semi-automatic weapons every year to harvest game, and I can assure you that the animal is not "obliterated". That you would allege such a thing shows a complete lack of knowledge on the subject at hand.

    "In 1994, Congress passed and President Bill Clinton signed the Federal Assault Weapons Ban. The law prohibited individuals from possessing assault weapons, like the AR-15 rifle allegedly used by Holmes."

    Completely untrue. The Federal Assault Weapons Ban prohibited the manufacture of certain weapons, but did not prohibit ownership of such weapons in any way whatsoever. Really, as a "distinguished professor of law" such a point should be easily understood by you.

    "Thus, the law should go back to what it was a decade ago, when assault weapons were prohibited"

    They weren't prohibited.

    "It is unimaginable that the court will find a Second Amendment right for people to possess tactical nuclear weapons or chemical and biological arms or automatic and semi-automatic weapons."

    What's unimaginable is that someone who thinks ownership of a semi-automatic weapon is comparable to ownership of a tactical nuclear weapon would be employed as a professor of law.

    "After the tragedy in Aurora, I expected even the Republican presidential candidate, Mitt Romney, to argue for a ban on assault weapons."

    I had no such expectation, which is evidence that I have a more realistic view of politics than you do.

    Should you wish to dispute any of my points (I'm not holding my breath), I'll be happy to provide documentation to support them.







  • Montana Libertarian

    There is so much wrong with this essay that I will touch only upon the most egregious errors.

    To begin, the term "assault weapon" is a coinage of and term of art in the pro gun control community. It has no real-world utility since it refers solely to cosmetic features of certain firearms.

    "Imagine a product that serves no purpose but to kill people. . ." On the contrary, firearms in general and so-called assault weapons have many uses beyond homicide: hunting, shooting competitions, self-defense, varmint control and target shooting are a few. In fact, homicide is the least common use of firearms. In 2010 there were only 8323 homicides in the U.S. That figure excludes those killings ruled justifiable. In the same year many millions of rounds of ammunition were purchased and expended yet caused no human harm whatsoever.

    "Semi-automatic weapons are not used to hunt; they would obliterate the animal." The Reminton 750 Woodmaster, the Ruger All Weather Ranch Rifle, the Browning Short Rack and the Benelli R1 are only four of a number of semi automatic rifles made and used primarily for taking large game.

    "It is outrageous that a product that exists for no purpose other than to kill has an exemption from state tort liability." Far from outrageous, it is clearly reasonable to maintain this exemption. In fact, the Gun Protection Act prevented unconscionable suits against manufacturers of legal products for third party criminal misuse of those products. Consider an analogous suit against knife makers, or those who teach law students who then go forth and bilk their clients.

    I hope Dean Chemerinsky teaches his students to do better legal research than the firearms research shown in this essay.

  • Lawrence Keane

    Professor,

    Your argument falls apart in your first sentence when you assert modern sporting rifles "serves no purpose but to kill people". Try target shooting, hunting, collecting, all of which are perfectly legal and protected by the 2d Amendment. And if your premise were try then it would apply to all guns, justifying a ban on all firearms. Fortunately the Heller and McDonald decisions protect commonly owned firearms, like modern sporting rifles. And, the public does not support banning these firearms even when they are incorrectly described as "assault rifles" which by definition they are not.

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