The Democrats strategic communications strategy on banning assault weapons designed to make the Republicans Darth Vader and nothing else …

The 24 May 2022 massacre of 21 school children and teachers in Uvalde, Texas has, as expected, brought out cries from the public for the banning of assault weapons given the level of carnage these weapons produce. Unsurprising, in my opinion, is the more cautious approach of US Senate and House Democratic leadership.

House speaker Nancy Pelosi, Democrat of California, and Senate majority leader Charles Schumer, Democrat of New York, both appear to walk a tightrope given the upcoming midterm elections in November and the outcry for more gun control.  A number of Democrats in both chambers are in competitive races with maintenance of a majority on the minds of both Mrs Pelosi and Mr Schumer.

The concept of “gun violence” legislation is being tossed around more so than the concept of “gun banning.”  It reflects the pressure on Democrats to meet the Republicans somewhere near a political middle on the issue of quelling the number of mass shootings in America, but a realization by Democrats that given the role of government ( to encourage and tax markets) and the problem with defining “assault weapon” (that term is political, in other words, does not exist), Democrats are forced to come close to looking like they are being effective versus not getting on the field to attempt to cross the finish line.

Take the firearm market issue.  The Democrats are not about to weaken the firearms market by reducing the number of firearms either manufactured in or imported into the United States.  26 USC 5821 allows a tax of $200 to be levied on each fire arm made in the United States.  In 2019, 7,011,945 firearms were produced in the United States which should have amounted to $1.4 billion in tax revenues.  Also in 2019, an additional 3,986,663 firearms were imported into the United States.  By 2020, that number had increased to 6,831,376 firearms imported into the US.  Reducing the market for firearms has a negative effect on US tax collections on market activity apparently covered by the US Constitution.

Democrats have tried to argue around the Second Amendment by asserting the amendment addressed the ownership of weapons for the purpose of arming a state militia.  Owning an assault weapon in 2022 is not necessary to meet state militia needs, Democrats may argue.

But this is where the Republicans and gun rights advocates could make a simple states rights rebuttal.  It is because the Second Amendment provides the States with a foundation for creating a militia that the States should have the benefit of its police powers to regulate gun ownership in their own states.  Granted, when firearms move through the conduits of interstate commerce for the purpose of sale, the sticky fingers of the Internal Revenue Service will stretch out and levy taxes, but as for ownership of firearms, specifically the semi-automatic weapons that were used in the Texas school shooting, Democrats may be wary of the Constitutional fight that may arise. 

Another hindrance may be the definition of “assault weapon.”  The Democrats may try to resurrect the definition from the now expired assault weapons ban legislation of 1994.  That legislation defined an assault weapon as:

“[A]ny semi-automatic rifle with a detachable magazine and at least two of the following five items: a folding or telescopic stock; a pistol grip that protrudes conspicuously beneath the action of the weapon; a bayonet mount; a flash suppressor or threaded barrel; or grenade launcher.”

Remove these factors and you can remove a firearm from at least the old definition of “assault weapon.”  In addition, I doubt the Democrats will get away with the vagueness of the term, “assault weapon.”  “Assault” is defined as a violent act.  “Weapon”, however, is defined as any instrument used to injure or kill.  That list of instruments goes a bit of a ways beyond just a firearm.  The Democrats will be forced to be a bit more definitive.

Politically, this may be just what the Democrats want.  They can be performative by looking like they are giving their constituents something substantive drafting a bill that strengthens background checks while making the Republicans the fall guy for not banning categories of firearms Democrats cannot or will not define.  All the while Democrats can protect the market for “assault weapons” and the taxes and imposts garnered from regulating that market.

Unfortunately, America will put the loss of life last week into the recesses of its consciousness, at least until the next shooting.

Alton Drew

29 May 2022

Disclaimer: This blog post should not be construed as legal advice or an agreement to provide legal or political analysis.  To set up a consultation, contact us at altondrew@altondrew.com.

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