OSD 120: Guns are dangerous. That’s a feature, not a bug.

Getting the right answer hinges on asking the right question.

On Friday, Judge Roger Benitez, a federal district judge in southern California, struck down California’s assault weapons ban. (For full technical details, check out Stephen Gutowski’s coverage over at The Reload.) He stayed the ruling for 30 days, and it’s very likely that that stay will become permanent until the Ninth Circuit inevitably reverses Benitez’s ruling on appeal. So as for on-the-ground effects, this ruling doesn’t mean much for now.

But it does highlight something really important. On page three of the ruling, Benitez details the climate surrounding the passage of California’s 1989 AWB — the first AWB in the country, and the one that kicked off the wave of AWBs that ran from 1989 to 1994. (Side note: interestingly, every single state-level AWB was initially passed during that paroxysm. AWBs seem like a permanent fixture of gun laws, but they’re really a very sticky quirk from a five-year period three decades ago.)

A. Pre-Heller Origin of the Assault Weapons Control Act (“AWCA”)

It is clear today, in the year 2021, that individuals have a right to keep and possess dangerous common arms. But California’s Assault Weapons Control Act (“AWCA”) was enacted in the year 1989. In 1989, the California Legislature was concerned that an assault weapon “has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.” See Cal. Penal Code § 30505(a). AWCA then banned assault weapons by specific makes and models. Cal. Penal Code § 30510.

AWCA was a policy choice unencumbered by constitutional considerations. The California Legislature weighed only the firearm’s value for sports and recreation against the relative dangerousness of the weapon and the danger of it being misused by criminals. It was a different time in legal history.

B. Pre-Heller Second Amendment Jurisprudence

In 1989, most judicial thinking about the Second Amendment was incorrect. Prior to 2008, lower court opinions did not acknowledge that the Second Amendment conferred an individual right to own firearms, or that the right applied against the states. See e.g., United States v. Hancock, 231 F.3d 557, 565–66 (9th Cir. 2000) (“[T]his court has concluded that ‘the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.’”) When the features-based definition was added for the year 2000, a citizen challenging AWCA in the Ninth Circuit was still (incorrectly) regarded as lacking basic Article III standing. Judicial recognition of an individual right to keep and bear arms to be respected by the states would come later with the Heller decision in 2008 and the McDonald decision in 2010. See McDonald v. City of Chicago, Ill., 561 U.S. 742, 767 (2010) (“[I]n Heller, we held that individual self-defense is ‘the central component’ of the Second Amendment right.”).

In the year 1989, the California Legislature was not concerned with maintaining room for a citizen’s constitutional right to have a common firearm of one’s choosing to defend hearth and home. In making its policy choice, the California Legislature neither mentioned a modern rifle as a means of self-defense, nor did the core Second Amendment right appear to have been any part of its consideration. The formal legislative findings say nothing about self-defense. See § 30505(a). The balance was simply about criminal use, on the one hand, versus sporting or recreational activities, on the other hand. In the pre-Heller jurisprudential milieu, the pure policy choice made sense.

Benitez here is cutting higher courts a lot of slack, and (maybe sarcastically — he is laying it on pretty thick) painting a picture where pre-Heller, courts and legislatures just didn’t know that gun rights were related to self-defense, not sports or recreation.

What he’s hinting at goes a lot further than courts and legislatures. This is actually the heart of every disagreement about gun rights. Guns have always been weapons, but the old form of the debate used to dance around that. That’s where you get things like nominally pro-gun-rights legislators signing onto the 1968 Gun Control Act’s introduction of the “sporting purpose” clause. (That clause gives the executive branch the power to summarily ban the importation of guns that aren’t sufficiently “sporting” in nature. The executive branch also gets the power to define “sporting” however it sees fit.) It’s the idea that guns are acceptable only to the extent that they are not weapons. This is a common model in Europe, where possession permits are the norm and where sporting and curatorial purposes are often the only legal reasons one may give to justify their gun ownership. Possessing a gun-as-weapon is, in many countries, explicitly illegal.

All of these contortions ends up sounding silly, because they’re built on denying an obvious truth: guns are weapons. The correct question isn’t whether that’s true, it’s whether that’s bad. Of course, we don’t think it is bad, we think that on net it’s extremely good. But the distinction between these two questions is a handy one to keep in mind. Underneath any argument for the status quo in gun laws is somebody who’s asked the wrong question — somebody who thinks that the difference between a gun that should be legal and one that shouldn’t be is that the latter is somehow more weapon-like. Take, for example, California Governor Gavin Newsom’s response to Benitez’s ruling:

Today’s decision is a direct threat to public safety and the lives of innocent Californians, period. As the son of a judge, I grew up with deep respect for the judicial process and the importance of a judge’s ability to make impartial fact-based rulings, but the fact that this judge compared the AR-15 — a weapon of war that’s used on the battlefield — to a Swiss Army Knife completely undermines the credibility of this decision and is a slap in the face to the families who’ve lost loved ones to this weapon. We’re not backing down from this fight, and we’ll continue pushing for common sense gun laws that will save lives.

(Context: Benitez opened his ruling with, “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment.”)

Note the implicit framing of Newsom’s comment: a Swiss Army Knife is obviously not a weapon and an AR obviously is, and that is the dispositive question about which one has a legitimate place in society. This is likely not even something he’s conscious of. The idea that guns-as-weapons are presumptively illegitimate is a worldview that many people are born into, and grow up earnestly believing. The only things that’ll change that belief are:

  1. Cultural exposure to the reality of modern gun ownership (namely, the David Yamane line that “guns are normal, and normal people use guns”)

  2. Thinking about the implications of not taking self-defense seriously as a human right

  3. A little pushback on common statistical fallacies. The base-layer assumption here is that gun ownership and homicide are correlated. That turns out to be incorrect.

But because this is a cultural divide, many people on either side have no first-hand exposure to people from the other culture. So there’s nothing that would cause them to change their beliefs.

We wrote up this “guns are weapons, and weapons are bad” mistake in “Guns are specifically designed to kill: the logic error behind the whole gun debate”. An excerpt:

Some people think the discussion is “guns are noxious so now what should we do about that”, whereas a lot of other people think the discussion is whether guns are noxious in the first place. The former are begging the question, and the latter are missing a chance to showcase the reality that, as Prof. Yamane puts it, guns are normal and normal people use guns.

It’s great to study harmful gun uses. But to stop there is to close the book on the first page — to beg the question. There are 423 million guns in the US. Each year, about 14,500 of them are used in a murder. Those are extensively studied, and that’s good. So now is a good time to start studying the other 99.9965721%.

Guns are weapons, and it’s up to us to make the case that that is good. Embracing that is surprisingly effective. The past 16 months have (as we’ll never tire of repeating) seen the biggest influx of new gun owners … ever. One in eight gun owners became a gun owner in 2020. (The math on that: 8.4 million new gun owners in 2020, 209 million adults in the US, and 32% of adults owned guns in 2019.)

They weren’t buying those guns because they suddenly got really into match shooting. Self-defense is positive, and it’s extremely popular. In other words: we are working on something that’s good and which people love. Let’s act like it.


This week’s links

Breakdown of Judge Benitez’s Miller v. Bonta ruling

Good details from Ashley Hlebinsky, an expert witness in the case, and curator emerita and senior firearms scholar at the Cody Firearms Museum.

Ian McCollum, “Pistols of the Warlords”, and the surprising power of small niches

Ian McCollum is up to $1.2 million raised for his Kickstarter project to make a book about … checks notes … Chinese domestic handguns from 1911 to 1949. That’s 12x his initial fundraising goal, and on the heels of raising $800,000 for his previous book about … checks notes with increasing incredulityFrench military rifles all the way back to 1866.

A “small” niche is something that’ll only appeal to a small fraction of people. But a small fraction of the population of the internet is still a hell of a lot of people. Ian has built an incredible reputation through many years of unparalleled execution. The internet makes it possible to turn your reputation in a niche — no matter how small the niche — into the foundation of a sustainable business.

Mark Zuckerberg doing some archery

Squad goals: get him to do this with a gun.


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