Local Government Tue Jul 16 2013

Symbol or Model? Evanston's "'Assault Weapons' Ban"

By Jeff Smith

The Evanston City Council last night, July 15, unanimously passed an "assault weapons ban" ("AWB") ordinance to the cheers of many in the council chambers, and -- a rarity -- the approval of even many gun owners. The ordinance passed under a perceived municipal rush to pass something, anything, under the recently-enacted Illinois concealed-carry ordinance which purported to strip home rule municipalities of their power to regulate so-called "assault weapons" (undefined in the state law) after 10 days of the state bill's enactment. For those interested, the pre-emption section, now codified at 430 ILCS 65/13.1, begins on p. 122 of the 168-page bill.

The Council in liberal Evanston, on the North Shore where there is no political downside in supporting any gun control measure and no political upside to opposing any, previously considered a version of the ordinance at its July 8 meeting but directed staff to address complaints that the ordinance was over-reaching and, like most such legislation, mainly banned firearms on the grounds of cosmetic or user-preference features (such as thumbhole stocks) rather than lethality. The version of the ordinance ultimately passed dealt with the issue by eliminating all of those cosmetic features as a grounds for banning a rifle, and using magazine size (15 bullets or more) as the definer -- as arbitrary limits go, one that has broader acceptance. For handguns, the definitions were left largely intact, mainly banning features that allow a handgun to be transformed into a short "long gun." For shotguns, again removable magazines remained as the main differentiater.

Depending how you look at it, the maneuver was darned clever, or pointless, or both. However, the end result may be that Evanston may avoid costly litigation, an outcome devoutly to be wished.

The first reason the changes might be clever were that they did address the justifiable howls of semi-automatic rifle owners (or future purchasers) that the "banned" features mainly were admittedly "cosmetic" aspects (to quote the state law) that have nothing to do with lethality or crime, only style or basic functionality, a well-documented argument that, however, does not stop my gun control friends from inaccurately and irrelevantly repeating that semi-automatic firearms are "weapons of war" (it's inaccurate because modern armies do not equip troops with the consumer-grade non-selective-fire guns most AWBs target, and because, demonstrably, the millions of US owners don't use them in warlike manner; it's irrelevant because "weapons of war" such as sidearms and WWII-type guns have been legal and will be legal for a long time).

The second clever aspect is that the new ordinance reduces the number of firearms affected -- and so the number of potential lawsuit plaintiffs -- to almost zero, at least in Evanston. Evanston has roughly 1,800 FOID card owners. Assuming the number of gunless card owners and the number of cardless gun owners roughly balance out, and that Evanston is on par with national stats, maybe a few hundred Evanston residents own semi-automatic firearms -- probably fewer since most such ownership is of handguns, which Evanston until recently banned. Of, say, 300 such owners, estimate 100 own semi-automatic rifles and of those, maybe a dozen, maybe only single digits,have magazines of 15 bullets or more. Many if not all of those rifles could be made AWB-compliant with modification.

Likely there are zero shotguns in Evanston affected by the ordinance and very few, if any, handguns (assuming handguns can even be assault weapons under the new law, a gray area). So at the end of the day, the ordinance affects probably only a couple dozen Evanston guns. The illegal owners are not going to sue, and if a legal owner or gun advocacy organization came to me, I'd advise them it wasn't worth it. Going to a gunsmith or a gun show to modify or exchange the offending piece, or renting a storage locker out of town, would be cheaper. Plus, the more limited a law, the more likely it is to be upheld. If the NRA, ISRA, or an ordinary citizen wants to challenge a local AWB, best to pick a fight where councilmen have gone further overboard in arbitrarily banning cosmetic features such as pistol grips. To that extent, the ordinance may be brilliant.

On the other hand, the fact that the Evanston ordinance impacts so few guns (hence my airquotes-within-airquotes title), also shows how unnecessary it was. Instead of holding hearings and taking meaningful evidence on what is, after all, a potential infringement on federal and (more powerful) state constitutional rights, the City limited public comment to ridiculous, hurried statements of 75 seconds. The City's format, under pressure of a state "Buy now! Only 10 Days Left!" tactic, virtually prevented any presentation of real data, let alone challenge of assertions, real debate, or thoughtful consideration.

What the data would show is that there are probably 50-60 million semi-automatic weapons in circulation in America. A reported 18-20% of firearm owners have semiautos, yet such weapons account for only 2%-3% of gun homicides and other gun crimes. Rifles in particular are generally not used in crime -- more people are murdered by beatings and stranglings, or by knives, than by rifles in America. Although models such as the AR-15 whose looks so scare suburbanites are the hottest-selling in the US, they account for only a tiny fraction of gun crimes, certainly less than 1%. By any measure, not only are the folks who own these rarely the barbarians blazing away in our cities, but by the numbers they appear to be more responsible than the average gun owner.

Some of the gun control advocates know this. Some don't -- those fixated on the horrible but outlier incidents like Aurora or Newtown, where a deranged citizen has wielded one of the scary-looking pieces in a spree shooting, subordinate statistics or context to cognitive biases, whereby rare psycho killings warrant confiscating millions of firearms from millions of law-abiding hunters, target shooters and homeowners who own and maintain them with absolutely no thought or threat of public mayhem. But the smarter, calmer gun control advocates know that what they most vocally seek to ban are the guns least likely to be used in violent crime -- and they don't care. Or rather, they exploit the tough looks and repeat-shooting capacity of modern semi-automatics as prelude to broader bans. The overarching object of an ordinance like Evanston's, other than to sate the "we have do something!" impulse, is to assert the right of the State to ban firearms, period. The oft-heard assurance, "Oh, nobody wants to take your guns away" is hooey. Both privately and overtly, many gun controllers will say that an AWB is just a "first step," and the state law vaguely says that a local ordinance allows for later amendment.

But for now, the issue is hopefully put to bed in Evanston. I'd have preferred that bandwidth and staff resources had been devoted to measures with more likelihood of real payback and a litigation risk of zero. But it's like Evanston's recent "vacation rental" ordinance: as unnecessary laws go, it's not the worst I've seen. It will change little: a few owners of affected firearms may grumble and modify, sell, or relocate theirs; a few others will decide just to keep it under the table (or bed). What won't happen is that gangs stop gangbanging, or alter their purchase decisions, or that some nascent Lanza or Holmes says "Gee, because of this ordinance I may need to reconsider my planned massacre." But at least we are less likely to see Evanston officials being embarrassingly grilled about why they banned features whose relationship to crime they can't possibly explain, while lawyers run up hundreds of thousands in legal fees at taxpayer expense. Meanwhile, other smart communities, if they don't decline altogether to wade into gun control (as Park Ridge and Waukegan have declined), may consider a largely-symbolic gesture such as Evanston's as a way to make a statement while moving on to strategies with more tangible results.