Legal Commentary

Clinton staff: ?We are taking the law and bending it as far as we can to capture a whole new class of guns.? Kagan wrote the Clinton ban on gun imports.

By David Kopel

The Chicago Tribune?s James Oliphant reports: ?According to records at the William J. Clinton Presidential Library in Little Rock, Ark., she also drafted an executive order restricting the importation of certain semiautomatic assault rifles.?

When ban was announced, Clinton staffer Jose Cerda stated, ?We are taking the law and bending it as far as we can to capture a whole new class of guns.? [Los Angeles Times, Oct. 22, 1997].

The import ban was made permanent in the spring of 1998. Here?s an explanation I wrote, as part of an article on Rahm Emanuel for America?s 1st Freedom, which is a NRA member magazine:

In 1998, Clinton forbade the import of 58 types of firearms and their accessories. . . . 

Emanuel defended the ban on The NewsHour with Jim Lehrer, repeatedly claiming that the banned guns were ?military weapons, not sporting weapons.?

?Those weapons were designed for one purpose?military?and they don?t belong on our streets,? he insisted.

Emanuel asserted that Clinton had banned ?the AK-47,? which was pure nonsense. The AK-47, which is a fully automatic rifle, was not covered by the import ban. Indeed, not one of the guns banned was an automatic, nor were any of the guns manufactured primarily for military use.

All the banned guns were used in target competitions. Some had names like ?Hunter? or ?Sporter.? So how did Clinton and Emanuel get around the 1986 federal law requiring that imports must be allowed if the gun is ?particularly suitable for or readily adaptable to sporting purposes??

Emanuel argued that it was permissible to ban the guns because [a Treasury study found that] comments from hunting guides showed that the guns were rarely recommended for hunting trips. As if the only gun that is a ?sporting? gun is one used by people who can afford to take trips with a professional guide.

Emanuel further contended that the guns should be banned because they ?accept rounds in the 20, 30, 40, in some cases 100 rounds at a case? [sic]. Of course, every gun that accepts a detachable magazine can accept a detachable magazine of any size. So Emanuel?s theory would actually set the stage for a ban on every gun that uses a detachable magazine.

Democratic Senator Pat Leahy, who was then the ranking member of the Senate Judiciary Committee, wrote to President Clinton that he ?strongly believes that using a Presidential directive to avoid the normal legislative process regarding any changes to the assault weapons ban is the wrong way to go.?

The list of banned guns is here, at page 167.

Full post as published by The Volokh Conspiracy on May 11, 2010 (boomark / email).