Background and Need for the Legislation
I. THE 1994-2004 ASSAULT WEAPONS BAN
On September 13, 1994, President Bill Clinton signed the
Violent Crime Control and Law Enforcement Act of 1994, which
contained the Public Safety and Recreational Firearms Use
Protection Act (popularly known as the ``Federal Assault
Weapons Ban of 1994'' (FAWB)).2 The FAWB made it ``unlawful
for a person to manufacture, transfer, or possess a
semiautomatic assault weapon.''3 The FAWB defined the term
``semiautomatic assault weapon'' as any of the following
weapons, including copies or duplicates: (1) Norinco, Mitchell,
and Poly Technologies Avtomat Kalashnikovs; (2) Action Arms
Israeli Military Industries UZI and Galil; (3) Beretta AR70
(SC-70); (4) Colt AR-15; (5) Fabrique National FN/FAL, FN/LAR,
and FNC; (6) SWD M-10, M-11, M-11/9, and M-12; (7) Steyr AUG;
(8) INTRATEC TEC-9, TEC-DC9, and TEC-22; and (9) ``revolving
cylinder shotguns, such as (or similar to) the Street Sweeper
and Striker 12.''4 The FAWB also prohibited semiautomatic
rifles, semiautomatic pistols, and semiautomatic shotguns that
had two or more military-style features--such as a ``grenade
launcher'' and a ``folding or telescoping stock.''5 This
methodology for determining which unenumerated semiautomatic
rifles, semiautomatic pistols, and semiautomatic shotguns
constituted prohibited assault weapons is known as the ``2-
characteristics test.''6
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2Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, 108 Stat. 1796, Title XI--Firearms, Subtitle A--Assault
Weapons, Sec. Sec. 110101-110106 (repealed 2004); see also Michael A.
Foster, Cong. Rsch. Serv., R46958, Federal Firearms Law: Selected
Developments in the Executive, Legislative, and Judicial Branches 34
(2021).
3Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, 108 Stat. 1796, Title XI--Firearms, Subtitle A--Assault
Weapons, Sec. 110102(a) (repealed 2004).
4Id. Sec. 110103(a) (repealed 2004).
5Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, 108 Stat. 1796, Title XI--Firearms, Subtitle A--Assault
Weapons, Sec. 110102(a) (repealed 2004).; see also Mark Gius, The
Impact of State and Federal Assault Weapons Bans on Public Mass
Shootings, 22 Applied Econ. 281, 282 (2015); Koper, Woods, & Roth,
supra note 1, at 4.
6Assault Weapons, Giffords L. Ctr. (2022), https://giffords.org/
lawcenter/gun-laws/policy-areas/hardware-ammunition/assault-weapons/;
see also Press Release, Diane Feinstein, Senator, Assault Weapons Ban
of 2013, https://www.feinstein.senate.gov/public/index.cfm/assault-
weapons-ban-summary (last visited July 14, 2022).
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The FAWB did not apply to any semiautomatic assault weapons
that were lawfully possessed on or before the date of enactment
(September 13, 1994).7 In addition, to accommodate firearms
for shooting sports and self-defense, the FAWB specifically
listed 660 models of guns that were exempted from the ban.8
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7Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, 108 Stat. 1796, Title XI--Firearms, Subtitle A--Assault
Weapons, Public Safety and Recreational Firearms Use Protection Act,
Sec. 110102(a) (repealed 2004).
8Id. Sec. 110106 (repealed 2004); see also James B. Jacobs, Why
Ban ``Assault Weapons''?, 37 Cardozo L. Rev. 681, 693 (2015).
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The FAWB also amended the U.S. Code to make it ``unlawful
for a person to transfer or possess a large capacity ammunition
feeding device.''9 The FAWB defined ``large capacity
ammunition feeding device'' as a ``magazine, belt, drum, feed
strip, or similar device manufactured after the date of
enactment of the Violent Crime Control and Law Enforcement Act
of 1994 that has a capacity of, or that can be readily restored
or converted to accept, more than 10 rounds of
ammunition.''10 As with the exemption for semiautomatic
assault weapons owned on or before the date of enactment, the
FAWB created a safe harbor exemption for large capacity
ammunition feeding devices that were lawfully owned on or
before September 13, 1994.11 Finally, the FAWB allowed for
semiautomatic weapons and large capacity ammunition feeding
devices for: (1) law enforcement; (2) security for nuclear
materials as provided for under the Atomic Energy Act of 1954;
(3) retired law enforcement personnel; and (4) semiautomatic
weapons authorized by the Secretary of the Army.12
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9Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, 108 Stat. 1796, Title XI--Firearms, Subtitle A--Assault
Weapons, Public Safety and Recreational Firearms Use Protection Act,
Sec. 110103(a) (repealed 2004).
10Id. Sec. 110103(d) (repealed 2004).
11Id. Sec. 110102(a) (repealed 2004).
12Id. Sec. Sec. 110102(a); 110103(a) (repealed 2004).
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Research supports the efficacy of the assault weapons bans
for reducing gun violence. Under the 1994-2004 ban, the number
of deaths and injuries from mass public shootings was
significantly reduced.13 The likelihood of mass shooting
deaths also fell by 70% when the FAWB was in effect.14
Research from the U.S. Department of Justice shows that
criminals committed from 32% to 40% fewer gun crimes with
assault weapons while the FAWB was in effect.15
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13Gius, supra note 5, at 283; see also Charles DiMaggio, Jacob
Avraham, Cherisse Berry, Marko Bukur, Justin Feldman, Michael Klein,
Noor Shah, Manish Tandon, Spiros Frangos, Changes in US Mass Shooting
Deaths Associated with the 1994-2004 Federal Assault Weapons Ban:
Analysis of Open-Source Data, 86 J. of Trauma & Acute Care Surgery 11,
15 (2019).
14DiMaggio, Avraham, Berry, Bukur, Feldman, Klein, Shah, Tandon,
Frangos, supra note 13, at 14.
15Koper, Woods, & Roth, supra note 1, at 2.
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Over time, the FAWB reduced the supply of large capacity
ammunition feeding devices.16 Before the FAWB went into
effect, large capacity ammunition feeding devices were used in
14% to 26% of guns crimes.17 After the FAWB's prohibition of
large capacity ammunition feeding devices went into effect,
mass shooting fatalities fell by 11% to 15%.18 In addition,
when the large capacity ammunition feeding device ban was in
place, there were 77% fewer injuries from guns.19 Similarly,
after states enacted large capacity ammunition feeding device
bans, fatalities by guns also fell by 38%.20
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16Christopher S. Koper, Assessing the Potential to Reduce Deaths
and Injuries from Mass Shootings Through Restrictions on Assault
Weapons and Other High-Capacity Semiautomatic Firearms, 19 Criminology
& Pub. Pol'y 147, 158 (2020).
17Koper, Woods, & Roth, supra note 1, at 2.
18Koper, supra note 16, at 162.
19Michael Siegel, Max Goder-Reiser, Grant Duwe, Michael Rocque,
James Alan Fox, & Emma E. Fridel, The Relation Between State Gun Laws
and the Incidence and Severity of Mass Public Shootings in the United
States, 1976-2018, 44 L. & Hum. Behav. 347, 354 (2020).
20Id. at 353.
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While the ban achieved its intended effects in many
respects, it was not without its shortcomings. The ban's 2-
characteristics test made it fairly easy for the gun
manufacturing industry to design firearms that were not
prohibited under the ban, yet still functioned similarly to
those prohibited assault weapons.21 For example, the
manufacturer of the TEC-9 merely changed the design of the gun
barrel on the TEC-9 and renamed the gun the AB-10 to comply
with the FAWB.22 In addition, the FAWB did not prohibit
assault weapons that were copycats of the assault weapons that
were on the ban list.23 Finally, individuals were able to
retrofit their guns with devices that made the guns
functionally indistinguishable from prohibited assault
weapons.24
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21Koper, Woods, & Roth, supra note 1, at 10-13; see also John
Roman, Correcting Myths About the Assault Weapons Ban Research, Urb.
Inst. (Mar. 26, 2013), https://www.urban.org/urban-wire/correcting-
myths-about-assault-weapons-ban-research; Assault Weapons, supra note
6.
22Roman, supra note 21.
23Robert Farley, FactChecking Biden's Claim that Assault Weapons
Ban Worked, Factcheck (Mar. 26, 2021), https://www.factcheck.org/2021/
03/factchecking-bidens-claim-that-assault-weapons-ban-worked/.
24Alana Wise, Biden Wants New Ban on Assault-Style Weapons. What
Lessons Were Learned from the `90s?, NAT'L Pub. Radio (Apr. 10, 2021,
8:14 AM), https://www.npr.org/2021/04/10/985514254/biden-wants-new-ban-
on-assault-style-weapons-what-lessons-were-learned-from-the-.
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The number of assault weapons and large capacity ammunition
feeding devices that were grandfathered in under the FAWB also
undermined the effectiveness of the ban.25 When the FAWB went
into effect in 1994, there were approximately 1.5 million
assault weapons in the United States.26 As might be expected,
passage of the legislation also caused the sale of assault
weapons to surge before the FAWB went into effect.27
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25Koper, Woods, & Roth, supra note 18, at 2-3; see also Glenn
Thrush, Democrats Failed to Extend Assault Weapons Ban in 2004. They
Regret It., N.Y. Times (June 9, 2022), https://www.nytimes.com/2022/06/
09/us/politics/democrats-assault-weapons-ban.html.
26Koper, supra note 16, at 156.
27Roman, supra note 21.
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II. GUN VIOLENCE AFTER THE EXPIRATION OF THE 1994-2004 ASSAULT WEAPONS
BAN
Mass shootings have been deadlier since the expiration of
the original assault weapons ban in 2004. The number of mass
shooting deaths, defined as shootings that resulted in 4 or
more deaths not counting the shooter,28 substantially
increased after the ban's expiration.29 The total number of
mass shooting deaths fell by 22% from the pre-FAWB time period
of 1981 to 1993 compared with the FAWB time period of 1994 to
2004.30 The total number of mass shooting deaths increased by
483% from when the FAWB was in force compared with the post-
FAWB time period.31
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28DiMaggio, Avraham, Berry, Bukur, Feldman, Klein, Shah, Tandon,
Frangos, supra note 13, at 13.
29Jon Greenberg, Did Mass Shooting Deaths Fall Under the 1994
Assault Weapon Ban? Checking Bill Clinton's Claim, Politifact, Poynter
Inst. (Aug, 7, 2019), https://www.politifact.com/factchecks/2019/aug/
07/bill-clinton/did-mass-shooting-deaths-fall-under-1994-assault-w/;
DiMaggio, Avraham, Berry, Bukur, Feldman, Klein, Shah, Tandon, Frangos,
supra note 13, at 13; see also Curriculum for Urban Injury Research and
Epidemiology, Curriculum For Urb. Injury Rsch. & Epidemiology, https://
injuryepi.org/styled-2/ (last visited July 15, 2022).
30Id.
31Id.
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Active shooter events tracked by the Department of Justice
also became more frequent and more deadly after the ban
expired. The Federal Bureau of Investigation (FBI) defines the
term ``active shooter'' ``as one or more individuals actively
engaged in killing or attempting to kill people in a populated
area.''32 The average number of active shooter incidents per
year increased by 315% from 2000 to 2004 compared with 2005 to
2021.33 When the FAWB was in place during the years of 2000
to 2004, the average number of active shooter incidents was 7.4
per year.34 From 2005 to 2021, the average number of active
shooter incidents was 23.3 per year.35 The average number of
people killed from active shooter incidents per year increased
by 312% from the ban years of 2000 2004 compared with the post-
ban period of 2005-2021.36 From 2000 to 2004, the average
number of people killed from active shooter incidents per year
was 22.37 But from 2005 to 2021, the average number of people
killed from active shooter incidents was 68.7.38
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32U.S. Dep't of Just. Bureau of Fed. Investigation, Active
Shooter Incidents: 20-Year Review 2000-2019 2 (2021), https://
www.fbi.gov/file-repository/active-shooter-incidents-20-year-review-
2000-2019-060121.pdf/view; U.S. Dep't of Just. Bureau of Fed.
Investigation, Active Shooter Incidents in the United States In 2021 3
(2022), https://www.fbi.gov/file-repository/active-shooter-incidents-
in-the-us-2021-052422.pdf/view.
33U.S. Dep't of Just. Bureau of Fed. Investigation, Active
Shooter Incidents, supra note 32, at 6.
34Id.
35Id.
36Id., at 24; U.S. Dep't of Just. Bureau of Fed. Investigation,
Active Shooter Incidents in the United States In 2021, supra note 32,
at 4.
37Id.
38Id.
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After the FAWB expired in 2004, the number of guns
manufactured annually in the United States surged from
approximately 3 million in 2004 to over 11 million in 2020.39
In 2004 there were approximately 9 million FBI background
checks for the purchase of guns.40 In 2021, there were
almost40 million FBI background checks for the purchase of
guns.41
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39Philip Bump, Tallying America's Fascination with AR-17-Style
Rifles, Wash. Post (May 26, 2022, 4:49 PM), https://
www.washingtonpost.com/politics/2022/05/26/tallying-americas-
fascination-with-ar-15-style-rifles/.
40Id.
41Id.
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III. THE ASSAULT WEAPONS BAN OF 2022
Similar to the 1994 ban, H.R. 1808, the ``Assault Weapons
Ban of 2022,'' prohibits the sale, manufacture, transfer, or
possession of semiautomatic assault weapons and large capacity
ammunition feeding devices. The bill avoids some of the
shortcomings of the prior ban by using a 1-characteristic test
to assess whether certain semiautomatic weapons are prohibited
semiautomatic assault weapons, lists specific prohibited
weapons, and prohibits copies of those weapons. The prohibition
does not apply to the possession, sale, or transfer of any
semiautomatic assault weapon lawfully possessed on the date of
enactment (a grandfathered semiautomatic assault weapon). H.R.
1808 also allows for the transfer of grandfathered
semiautomatic assault weapons through a federal firearms
licensee following a background check using the National
Instant Criminal Background Check System (NICS). Importantly,
the bill requires that semiautomatic assault weapons be
securely stored so that they are not accessible to those who
are prohibited from possessing them. Finally, H.R. 1808 allows
states to use Byrne Justice Assistance Grant funds for
voluntary buyback programs for semiautomatic assault weapons
and large capacity magazines.
Like its predecessor, the bill is intended to gradually
reduce the prevalence of the deadliest tactical weapons, while
containing numerous provisions that protect the rights of
hunters, gun collectors, farmers, sport shooters, and those who
use firearms for self-defense. H.R. 1808 exempts antique and
most manually operated firearms and lists more than 2,200
firearms that are not affected by its prohibitions. Like the
1994-2004 ban, it includes exemptions for specific uses such as
law enforcement (including retired service weapons), nuclear
security, and testing authorized by the Attorney General. It
also allows for temporary transfers without a background check
for target shooting at a licensed target facility or
established range.