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Pistols, Shotguns, and Bump Stocks, Oh My!: Thoughts on Federal and State Firearm Laws.

Posted by Alex K. Kriksciun | Oct 15, 2017 | 0 Comments

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I had fully intended to finish up my post on campus sexual assault this week.  However, the recent tragic massacre in Las Vegas made me rethink my blog post.  Of course, after every mass shooting of this type, the conversation inevitably turns to gun control.  I try to keep this blog timely, so I wanted to discuss federal and state laws and gun control.  Please note that the views expressed on this blog are mine and mine alone.

The Second Amendment to the United States Constitution states (verbatim) “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  I guess that passed for a complete sentence in 1791.  In 2008, the United States Supreme Court held that the right to possess a firearm is an individual right inDistrict of Columbia v. Heller.

Article 1, Section 11 of the Louisiana Constitution of 1974 states “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.”  The concept of “strict scrutiny” requires that a law further a “compelling governmental interest,” and that the law be narrowly tailored to achieve that interest.  If the law cannot meet this standard, it is unconstitutional under the Louisiana Constitution (though a similar federal law may be deemed constitutional).  Strict scrutiny has been famously observed to be “strict in name, but fatal in practice.”  Very few laws that are analyzed under the strict scrutiny test will pass constitutional muster.  The most important cases interpreting this portion of the Louisiana constitution deal with whether felons retain the right to possess firearms (short answer: they don't).

Of course, the right to bear arms is not without its boundaries.  For example, you cannot generally carry a concealed weapon unless you have a permit to do the same.  There is no federal law that governs the issuance of concealed carry permits.  Some states are “unrestricted” concealed carry states, which essentially means that you can carry a concealed handgun without a permit.  Some of those states impose limits on unrestricted carry, such as limiting the right to state residents or making the law apply only to unloaded weapons.  The truly “unrestricted carry” states without limitation are Arizona, Alaska, Kansas, New Hampshire, Vermont (which was the only unrestricted carry state 30 years ago), and West Virginia.  Most states, with California and New York being two notable exceptions, have a “shall issue” concealed permit law.  This means that if a person is applying for a concealed permit, as long as that person meets the legal requirements under state law, the licensing authority must issue the permit.  Louisiana is a shall issue state.

Perhaps a timelier restriction given the recent events in Las Vegas is one on automatic weapons.  Ownership of automatic weapons is governed by the National Firearms Act of 1934.  As a general rule, it is extremely difficult to legally obtain an automatic weapon made after 1986.  The M16 or one of its many variations has been the U.S. military's standard service rifle since 1969.  A new fully-automatic M16 costs the government between $700 and $800.  An M16 manufactured before 1986 can command as much as $10,000.  If you would like to own a M2 Browning .50 caliber machine gun (the so-called “Ma Deuce”), you can find one for sale here for $15k.  This is gun mounted on the M1 Abrams (the main battle tank of the Army and the Marine Corps).

Furthermore, all automatic weapons must be registered with ATF.  There are other categories of weapons that must be registered with the ATF as well, such as sawed-off shotguns and so call “destructive devices,” (which includes grenades, missiles, and poison gas weapons).  There are also several different taxes and fees associated with acquiring NFA firearms.  As far as I know, there is no specific law preventing a person from buying a semiautomatic AR-15 (the civilian version of the M16) if that person is legally able to buy a handgun.

My understanding is that the Las Vegas shooter was using semiautomatic rifles utilizing “bump fire” to simulate the fire rate of automatic rifles.  I don't want to get too into it, but bump fire refers to the act of using the recoil of a semiautomatic rifle to load another bullet into the chamber, thus allowing the shooter to hold down the trigger and fire until he or she runs out of ammo or releases the trigger.  This is typically accomplished by the use of a “bump stock,” which is an aftermarket stock designed to accomplish bump fire.   Bump fire allows a semi-automatic weapon to be essentially converted into less effective versions of fully automatic weapons.

Now my thoughts.  I have been a gun owner in the past, though I am not currently.  I have also been hunting in the past, but it has been many years since I have done so.  I have no particular moral objection to hunting, as I know some do.  I have also heard hunting advocates claim that hunting is a positive good or provides some sort of a benefit to the environment.  I cannot subscribe to that theory.  The only way that that would make sense to me is if the population of a particular target has grown at such a large rate as to make that target a nuisance.  In Louisiana, nutria are a good example of this.  Nutria are large rodents native to South America that look kind of like beavers with no tails.  They are an enormous nuisance here in South Louisiana, and the state actually pays hunters a certain amount of money for every nutria pelt they turn in.  That makes sense to me, considering that nutria do huge damage to this state's wetlands.  What doesn't make sense to me is claiming that hunting and killing ducks (for example) is a net benefit to the population of ducks.  I am by no means an expert in wildlife management, but that's my two cents on that issue.

With that being said, I have no objection whatsoever to private persons owning certain rifles and shotguns.  I have more of an objection to handguns.  I agree that handguns are useful for home protection.   I can't really think of any other legitimate reason to own one other than for protective and target shooting.  I am not saying that one shouldn't be able to purchase a handgun for any other reason, but I can't imagine how they would serve any useful purpose.  I'm reminded of the words of one of my favorite writers, Kurt Vonnegut, who once wrote “guns are a tool whose only use is to poke holes in human beings.”  I believe that many people who own handguns buy them to “look cool” or to let other people know that they have one.  I have no desire whatsoever to do this, but I don't have a problem with others doing the same.  I do have a problem with ownership of automatic handguns (such as the Glock 19) and any alterations to handguns that makes them more lethal.  One good example of this is an extended magazine.  Do you really need a 30-round magazine for your pistol?  What is the purpose of that?  I believe that those extended magazines and any other alterations to handguns, rifles, or shotguns should be illegal.   I also support background checks on all gun-show sales, mental health checks on persons who attempt to buy a gun, and other reasonable restrictions.

Which brings me back to the issue of bump stocks.  I have encountered bump stocks in my line of work before.  When you alter a weapon with a bump stock, it typically cannot be fired in a normal manner with the stock secured on one's shoulder.  I've been told that you really must hold the weapon in front of you because the recoil of the weapon and its moving back into firing position causes the weapon the rock or vibrate.  I have fired an automatic weapon without a bump stock before (it was a pre-NFA M14 rifle), and I've been told that it is much different than firing a rifle with a bump stock.  I cannot imagine why bump stocks would be legal to buy.  I do not believe that anybody could possibly have a legitimate reason for converting a semi-automatic to an automatic. 

I recognize that people can own, sell, and use certain automatic firearms under the NFA.  I am willing to tolerate that, but that is the limit of my tolerance.  As far as I am concerned, people who use bump stocks are simply looking for a cheap way to “create” an automatic weapon, which I believe serves no valid purpose.   If you want to buy an AR-15, go ahead.  If you want to buy a fully automatic pre-1986 automatic rifle, go ahead.   If you want to buy an AR-15 and a bump stock, that raises gigantic red flags for me.  If you want to own an automatic weapon, don't have the money for it, and think it would be unfair for you to be unable to buy an AR-15 and a bump stock to satisfy your ingenuous desires, I say too fucking bad.

As always, if you ever find yourself on the unhappy side of the criminal justice system, call the Law Office of Alex Kriksciun today!

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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