Gun owners knew that the concept and substance of gun provisions in the "Crime Control Bill" were fatally flawed. Myriad politicians removed from office last November now know their decision to vote for it was flawed. Because the law itself is constitutionally wrong in form and structure, the NRA et al. filed suit in U.S. District Court in Bay City, Michigan, on 7 February 1995 to have it overturned. SOF recently interviewed NRA's Assistant General Counsel Jim Warner on the specifics of suit No. 95CV10045BC, The National Rifle Association et al. vs. John Magaw, director BATF and the United States.
SOF: Jim, can you tell us the thrust of the lawsuit, plaintiffs and status?
JW: There are many plaintiffs, including Olympic Arms; Calico Light Weapons Systems; Navegar, which makes the Intratec Tech-9; DNC Engineering, which manufactures magazines; plus several individuals. The relief we seek is a declaration that the portion of the semiauto ban, which defines the term, "semiautomatic assault weapon," is void for vagueness and because it denies equal protection. The whole of the Feinstein-Schumer act denies equal protection to manufacturers.
SOF: What do you mean "denies equal protection?
JW: At the front of the statute is a list of 19 firearms, which by being named on the list, are defined as "semi-automatic assault weapons" and are banned from production, possession or transfer. In back, in appendix A of Feinstein-Schumer is a list of 650 "protected" firearms ... to which the ban will never apply as long as it is in effect, which is 10 years. This list of 650 really serves no purpose, but it opens with a list of semiautomatic center fire rifles. These all take a detachable magazine, yet the law does not ban them, although it bans other guns that are in every way similar.
SOF: Give me a couple of examples, Jim.
JW: Ruger Mini-14, Ruger Mini-30, Remington 7400, Iver Johnson M1 Carbine. These all take detachable magazines and in the words of the 6th Federal Circuit in the Springfield Armory case, they are of the same "type, function and capacity" as those banned. Further, the Ruger Mini-14 is on the protected list, but there is a parentheses after Ruger Mini-14 saying "(without folding stock)." The same is true on the list of protected rimfire semiautos -- the Ruger 10-22 is protected "(without folding stock)." The Ruger Mini-30 appears on the protected list without any parenthetical qualifications. Under the law, if you make this qualification in one place and not in another, it is because you did not mean it to apply in the other case; therefore, you can infer that Congress did not intend to ban production of the Ruger Mini-30 with a folding stock.
JW: The Choate folding stock for the Ruger Mini-30 and Mini-14 has both pistol grip and folding stock. These are both features on the generic criteria test for semiautomatic assault weapons. The existence of more than one of the generic criteria classifies it as a semiautomatic assault weapon. Therefore, you can infer that the Ruger Mini-30 is an exception to the ban on firearms that fail the test. We know they make exceptions because the Henry Repeating Rifle -- patented three weeks before Abraham Lincoln was elected -- was [recently] being brought in from Italy, as a reproduction. It has a 14-round magazine. The BATF was going to ban its importation, then backed off. So, there's clearly an exception.
SOF: If the Ruger Mini-30 is protected with a folding stock but the firearms on the enumerated list are not protected, though they are of the same type, function and capacity, then this is a lack of equal protection.
SOF: Jim, you mentioned in a previous conversation, you had also filed on the [interstate] commerce clause.
JW: Yes. Alfonso Lopez Jr. was a Texas high school student who brought a pistol to school, to sell. He was charged as a test case under the new federal statute. His lawyer read the "Federal Gun-Free School Zone Act" and said, "Nowhere does Congress mention that a firearm must be in interstate commerce or affect interstate commerce." Congress does not have plenary police powers. It only has the powers specifically given it by the Constitution. If they're going to interfere or intrude in areas historically reserved to the states -- that is, control of education and carrying firearms -- then they must explicitly state what constitutional power they're exercising in doing this. They did not do that in the Gun Free School Zone Act, and, in the 5th Circuit on appeal the decision of a trial court was upheld. They said [to the government] you have no authority whatsoever to pass this act in the first place.
SOF: Is that a separate lawsuit?
JW: That's a separate lawsuit, now on appeal to the Supreme Court. In the Supreme Court it is very likely that the 5th Circuit will be upheld, which means that unless you state that guns have to travel in interstate commerce, a federal firearms bill is invalid. We've also plead that in our case in Bay City, Michigan, in the U.S. District Court. We are not going to take any action on it until the Supreme Court decides the Lopez case.
SOF: When you say you're not going to take any action on it, what do you mean?
JW: We're not going to move for summary judgment on this count. The reason we filed it is, in Feinstein-Schumer nowhere does America's intellectual and cultural elite remember that they were supposed to tell us what constitutional authority they were exercising. And we know that states have historically reserved the right to restrict or ban semiautomatic assault weapons because they did it in Maryland, New Jersey and California, and they've also imposed magazine capacity limits in the District of Columbia, Maryland and New Jersey. So, these are powers historically reserved to the states.
SOF: And the suit you filed in the 6th District contains both the equal protection and commerce clause issues?
JW: Commerce, equal protection and vagueness. We are attacking it on vagueness on this theory: The definition, under the enumerated list, of a semiautomatic assault weapon reads as follows: "The term `semiautomatic assault weapon' means any of the firearms or copies or duplicates in any caliber of the firearms known as [fill in the blank]." The first problem with this is they included in the terms to be defined, the term "semiautomatic," which should have been one of the defining terms, and the term to be defined should have been "assault weapon." That would have saved them a lot of grief. But, apparently, America's leading gun grabbers all had outcome-based educations and didn't know the simple principles of grammar and so have screwed themselves by the grammar of this.
The first problem here is the term "copies," because it doesn't define what a copy is -- but if you read the list of enumerated firearms, the first one is Mitchell's Norinco or Poly Technology's copy of the Kalashnikov. And then it says in parentheses "(all models)." That means any Kalashnikov is banned. Right below that is Israeli Military Industries' Galil. Well, the Galil is a Kalashnikov. But, since they listed it separately you have to infer that Congress meant for the term "copy" to be very narrowly defined, since they only would have listed Galil separate from Kalashnikov if they thought the Galil would not be covered as a copy of the Kalashnikov. That means, as I said, that it's narrowly defined. Now, go back up to the definition and it says "in any caliber." Well, one of the plaintiffs is Navegar, manufacturer of the Tech-9.
The Tech-9 is a blowback operated 9mm pistol. Since the statute says a copy "in any caliber," I have postulated a copy of the Tech-9 in .50 Browning ... blowback. The resulting firearm would bear no resemblance and no common parts whatsoever with the original Tech-9. That must mean that "copy" can mean anything at all, just a vague theatrical-philosophical relationship, that is blowback or semiautomatic. How can something that only has the most remote theatrical-philosophical relationship be a "copy"?
Should the Valmet be prohibited because it is a Kalashnikov, or did Congress exclude it because they thought it wasn't an assault rifle? We don't know. We have no way of knowing. Since it's ambiguous, a person who purchases a Valmet may very well find himself confronting a U.S. attorney. We have no protection against that at all. We have no guarantee that this will not happen. The ATF can say they're not going to enforce it, but BATF can change personnel and there we are subject to felony penalties with no possible way to read the statute and know what kind of conduct the law demands.
Consider the term "known as." They did not say a semiautomatic assault weapon is any of the firearms that are the Colt AR-15, Sporter, etc... they just said the ones that are "known as." The Supreme Court has held that the use of the phrase "known as" is by itself ambiguous. The reason is, you must then ask "known as" by whom? How will the person purchasing the firearm know it is "known as" a Kalashnikov if it doesn't say that on the side? By whom must it be known? An average person? A technical expert at BATF? It doesn't say. Without clearer language you cannot apply this to firearms "known as."
SOF: If the NRA prevails will that mean Congress would have to reintroduce the legislation?
JW: That's right, or at least try to amend it. We don't know what the outcome will be in Lopez, because in oral arguments one of the issues raised by some justices indicated they did not believe that merely amending the Gun Free School Zone Act would cure the defect. So, we want to see what language they have with respect to that. It is of some interest to me that in all of the other three subtitles (the firearms provisions in the Crime bill are in Title 11, under four subtitles), Congress explicitly states it is relying on interstate commerce power to enact the law. But, with respect to Feinstein-Schumer, even in the floor debates transcribed in the legislative history, they never mention they have the power under interstate commerce to do this. And then finally in Title 32 of the Crime bill they amend the defect in the Gun Free School Zone Act regarding interstate commerce. So, they recognize in the same bill the necessity for asserting the interstate commerce power -- and yet they fail to do it in Feinstein-Schumer.
SOF: What's the schedule?
JW: At any time we can file for summary judgment and I'm trying to prepare for summary judgment as we speak.
stw@stw.com