The Orlando Tragedy, "Terror Gap" & Assault Weapon Ban: An Interview With David Yassky

In the aftermath of the June 12, 2016 Orlando mass shooting and public outcry about self-identified terrorists obtaining assault-style weapons, we caught up with David Yassky, who served as chief counsel to US House Subcommittee on Crime when Congress passed the Brady Law (1993) and the Assault Weapons Ban ( 1994). Enacted under the Clinton Administration, the Assault Weapons Ban (AWB) expired in 2004 under Bush due to lack of Congressional action to renew it. Yassky has a 20-plus-year perspective on the issue:

Assault Weapons Ban Again?
There seems to be a lot of argumentation over what an assault weapon is. In 1994 the law used a technical definition, characterizing specific features of the guns. But not to get lost in the weeds, the key idea was that the legislation should cover guns with the capacity to spray fire, guns designed to enable rapid-fire release of many bullets. In the horrible mass killing in Orlando last week, it is no coincidence that the gun of choice was the AR15, which makes it easy, however awful it is to say this, to kill 50 people.

Is the word "ban" accurate? No. When the Federal Assault Weapon Ban was enacted in 1994, any existing privately owned firearm was allowed to be kept and transferred. It was a ban on manufacture and sale of new assault weapons to civilians.

Aren't assault weapons on the same spectrum as machine guns, which were outlawed in the 1934 National Federal Firearms Act? We've effectively kept machine guns out of private hands since the 1930s. More serious weaponry like bazookas and hand grenades are not legal to possess outside the military. Regulation of assault weapons to curtail their ownership outside of military and law enforcement usage would be the logical next policy step for public safety.

What would happen with the many assault weapons currently in circulation? In the original 1994 bill, owners were allowed to keep their assault weapons. In retrospect, I would prefer to have treated existing assault weapons the way machine guns are treated now: you'd have to go and get a license for the weapon you own. Companies would not be able to make or sell new ones, and the ones that are out there would have to be registered with law enforcement. The number of bullets in an assault weapon -- the magazine size -- could also be reduced to reduce lethality. All of this is not practical given today's Congress.

"Terror Gap"

What about the "No Fly, No Buy" regulation to close the so-called "Terror Gap"? It's common sense: if someone is not allowed to fly because they're on the federal No Fly list, they shouldn't be allowed to buy assault weapons either. Private and non-store sales should be subject to background checks too, so that potential terrorists cannot buy guns online or at gun shows. These initiatives--what Connecticut's Senator Chris Murphy is trying to do right now--would help close the so-called "terror gap."

What else would you like to see happen? I'd like to see the closing of loopholes in the Brady Bill. Brady prohibits people from buying guns if they are a felon, or have a history of domestic violence or very serious mental illness. But these background checks are performed only for sales at licensed gun stores - not for sales at gun shows or over the internet. These loopholes are an open invitation for gun traffickers to evade the Brady background checks, and they now account for a pretty big percentage of gun sales. I'd also like to see a renewal of the assault weapons ban. The tragedies at Orlando, San Bernardino, Newtown, and all of the others show how much we need that.

Regulating Firearms Like Cars
You draw the analogy between regulating cars and firearms? Yes, the analogy I like is cars. If you want to buy a gun you should have to get a license like a drivers license, pass a written test, be examined by a qualified instructor who can determine if you have the basic competence to operate it safely, get insurance, and tell the government that this is the model and make -- like the car, the gun-- that you own. The car regulatory system doesn't stop people from buying and owning cars and enjoying their cars -- nor would it stop most people from owning and using guns for their full enjoyment.

We gradually figured out that first seat belts and now auto braking technology make driving safer. As with cars, we could be making guns as safe as possible. In the context of commonsense regulation of firearms like cars, a new assault weapons ban would be one place to start.


Who Benefits? Gun Deaths, Mass Shootings, Politics

Who benefits from having assault weapons so easily available to the general public in America today? Honestly? With guns, Republican politicians have an issue on which they can easily appeal to a swath of voters. Some Democrats, too.

Sure, the firearms industry benefits. But gun manufacturers aren't a vast sector. It's not like Pepsi arguing against soda tax or Exxon against a gas tax. That's not what stops reasonable gun regulation.

Rather, it's the ideology of a small but nontrivial percentage of the population that believes really fervently in unregulated gun ownership. Politicians willing to appeal to this sector can easily claim a big chunk of votes by endorsing this ideology.

That said, gun company money has had an impact in funding the NRA itself.

So you're saying that gun regulation could be advanced if citizens just started contacting their elected officials? Yes! But you have to be specific. Specify that you want them to prohibit people on the No Fly list from buying a gun. Specify that you want them to vote for legislation so that when someone wants to buy a gun from a gun show, he or she is background-checked for severe mental illness and felony history. You have to be specific to the content.

Politicians are pretty responsive. If they get just a hundred calls one way or another, they start to pay attention.

When you boil it down, the lack of regulation of firearms is due to public passivity, and not the NRA? It's lack of intensity. People who support gun regulation aren't as intense as those who oppose it. Tom Foley (former Speaker of the House), at the time I worked for Chuck Schumer, used to say, "What makes the NRA so powerful is not the money." He'd say, "It's that they can send a postcard to people in your district to say, 'those liberals are trying to take your guns away, go to the phone and dial 202-225-3121, and ask for Congressman so-and-so, and tell him to stop trying to take my guns away.' And they'd get up and go to the phone and make that call."

What has happened at the federal level in terms of gun regulation since the 1994 Assault Weapons Ban? Not much. In 1993 and 1994 when Congress passed the Brady Law and AWB, they didn't address steps like national licensing and registration. These broader initiatives would have allowed law enforcement to track guns alleged to have been stolen, strike down black market sales of guns, and foster implementation of new technologies like smart gun technology. The AWB expired after ten years, in 2004. In my view, both Brady and AWB were relatively small steps.

In fact, not only haven't we moved forward, but we've actually gone backward. The AWB expired after 10 years, and the rise of gun shows has created a giant loophole in (the protections originally afforded by) the Brady bill.

Where does it go from here, in light of preventing more mass shootings? There's a new sense of urgency about reasonable restrictions on firearm access. We've seen a shocking number of mass killings -- along with less dramatic but equally tragic "everyday" firearm killings and suicides -- without sufficient public pressure to move Congress.

Now the issue of domestic terrorism has changed the debate.

In a nutshell, given so much NRA flack, what is the reason to have new regulation on assault weapons? We have two big goals in firearms safety. We want to keep guns out of hands of dangerous people, criminals, or people who are unstable and might use them in a moment of instability. And, we want military style weaponry to be unavailable to private citizens.

Are you hopeful that the so-called "terror gap" will be closed, background checks expanded, and a assault weapon regulation passed? I'm optimistic. The famous King quote -- "the arc of the moral universe is long, but it bends towards justice" -- I believe that is true even beyond civil rights. Sooner or later, common sense is going to win. I don't know how long it will take, or what will be the turning point. But to me, it is so plain: We accept all this regulation with cars and people can still buy, own and use cars, don't feel hampered, and are much safer. There's just no reason not to do that with guns. That logic has to break through at some point.


David Yassky, currently Dean of the Elisabeth Haub School of Law at Pace University, has served as an elected and appointed official in NYC government. The above interview was conducted on June 15, 2016, days after a Senate filibuster on firearm regulation.