'Assault Weapon' Bans and the Second Amendment
'Assault Weapon' Bans and the Second Amendment
The attempts to implement sweeping gun control measures are not looking very promising for anti-gun advocacy groups and lobbyists these days.
On Thursday, October 19, 2023, a judge with the Federal District Court for the Southern District of California ruled California’s 33-year-old law banning so-called “assault weapons” to be a violation of the Second Amendment. US District Judge Roger Benitez applied the Supreme Court’s 2022 ruling in Bruen which ruled that any gun restrictions and regulations must be “consistent with this nation’s historical tradition of firearm regulation.”
Benitez’s ruling encompassed seventy-nine pages, part of which reads:
“Like the Bowie Knife which was commonly carried by citizens and soldiers in the 1800s, ‘assault weapons’ are dangerous, but useful.”
Benitez also states,“extraordinary weapons lying at the outer limits of Second Amendment protection,” writing that “(t)he banned ‘assault weapons’ are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes.”
He continued.“Instead, the firearms deemed ‘assault weapons’ are fairly ordinary, popular, modern rifles.”
Defining the terms
“Assault weapon” is an ambiguous term, unlike “assault rifle” which has a specific definition. According to the Alcohol, Tobacco, and Firearms Department (ATF), assault rifles are defined as a “Selective fire weapon. [Which] May be encountered with or without bayonet, with wooden stock or folding metal stock.”
A selective fire weapon is one with the capability to be adjusted to fire in semi-automatic, fully automatic, and/or burst mode. Semi-automatic means that only one round is fired per trigger pull. Fully automatic would be a weapon that repetitively fires multiple rounds as soon as the trigger is pulled and held down. A “burst mode” is what our current military uses alongside fully automatic weapons, which means a burst of 3 rounds gets fired per trigger pull.
The problem is that the AR-15 platform rifle (the weapon specifically targeted by these attempted bans) does not meet any of these definitions or criteria. So a new classification of weapons was created out of whole cloth to define rifles like this one. In other words, a propaganda term was created by anti-gun lobbyist organizations to spread fear and misinformation about these basic semi-automatic rifles in order to try and ban them.
“Assault weapon” is not so clearly defined, and in fact, individual states have varying definitions. There is no specific caliber size, velocity rate of fire, or other technical measure used to classify a gun as an assault weapon.
Gun control organizations tend to refer to “assault weapons” as simply a weapon “used to kill people quickly and efficiently.” Which doesn’t narrow it down in the slightest. Generally, an “assault weapon” refers primarily to any semi-automatic rifle, pistol, or shotgun that is able to accept detachable magazines and possess one or more other cosmetic features. So essentially, more than 90% of common weapons in existence fall into this category.
This appears to have always been the goal of gun control advocacy groups and Democrats: total gun confiscation. In 1976, Pete Shields, chairman of what is now The Brady Campaign, openly admitted this to The New Yorker:
“We're going to have to take one step at a time, and the first step is necessarily — given the political realities — going to be very modest. Right now, though, we'd be satisfied not with half a loaf but with a slice. Our ultimate goal — total control of handguns in the United States — is going to take time. My estimate is from seven to ten years. The problem is to slow down the increasing number of handguns sold in this country. The second problem is to get them all registered. And the final problem is to make the possession of all handguns and all handgun ammunition — except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors — totally illegal.”
The shift from small pistols and other handguns was subtle but came as a result of a 1990 announcement by the Violence Policy Center. Gun control organizations had made no headway in banning handguns, which are most commonly used in gun-related crimes, so the debate now needed to switch to larger “assault rifles”.
The use of the term “assault rifle” rather than “assault weapon” was deliberate and intentional as well. VPC stated that they were going to weaponize the false impressions that this term made on the general public, quoted as saying,"... the public's confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun."
Gun control organizations quickly fell in line getting on board with this propaganda tactic. Pete Shields' group, Handgun Control, Inc., became the Brady Center to Prevent Gun Violence. The National Coalition to Ban Handguns became the Coalition To Stop Gun Violence.
Semi-automatic rifles basically became a target of opportunity. It doesn’t matter to gun control organizations that rifles of all types are only used in under 400 murders per year, and that includes mass public shootings. In fact, knives, blunt objects, and personal weapons like hands and feet are regularly used in more murders than rifles are.
The Assault Weapon Ban of 1989
In July of 1989, then-President George H.W. Bush implemented a permanent import ban on 43 types of semi-automatic rifles. His Director of the ATF, Stephen E. Higgins claimed that the government studied 50 types of imported rifles and deemed all but 7 of them were not being used for sport as required by the Gun Control Act of 1968.
That said, if those same 43 rifles were manufactured domestically rather than being imported, they were perfectly legal. Which was nonsensical and illogical gun legislation. There was nothing about the manufacture of those weapons that made them inherently different. Weapons that were made outside of the U.S. were not somehow more dangerous than the ones manufactured here at home.
The Assault Weapon Ban of 1994
It is also important to note that we previously had another so-called “assault weapons ban” from 1994 to 2004, but this is fairly misleading as no guns themselves were actually banned. They simply could not be manufactured or sold with certain cosmetic features like detachable “high-capacity” magazines (magazines that hold more than 10 rounds), flash suppressors, folding rifle stocks, threaded barrels for attaching suppressors, bayonet lugs, pistol grips, etc. It was perfectly legal to purchase and possess an AR-15-style rifle without those features.
On September 13, 1994, Title XI of the Federal Violent Crime Control and Law Enforcement Act of 1994 - known as the Crime Control Act of 1994 - took effect. The National Institute of Justice (NIJ) was tasked with studying the effects, and the results were interesting. It was found that the immediate short-term effects of the “ban” at least temporarily reduced criminal use, but also failed to reduce the average number of victims per murder incident involving guns or multiple gunshot wound victims.
Authors of that government-funded study plainly stated, “We cannot clearly credit the ban with any of the nation’s recent drop in gun violence” and any future reduction in gun violence and mass public shootings as a result of the ban was likely “to be small at best and perhaps too small for reliable measurement.” This is not surprising as the violent crime rate in America had already been trending downward before the ban was implemented.
The Question of Constitutionality
This brings us to the question we should all be asking, in light of the facts surrounding America’s most popular sporting rifle, what good would banning it do, and arguably more importantly, is it constitutional? According to fairly recent Supreme Court rulings, the answer is no, an “assault weapons ban” targeting these guns specifically would not be constitutionally valid. They would be illegal, in fact.
“Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
This ruling by itself rules out one of the most common arguments made in favor of banning AR-15-style rifles, that the founders could not have envisioned this weapon ever existing. Never mind the fact that repeating arms and even fully automatic weapons were around back then.
“The second amendment accordingly guarantees the right to carry weapons ‘typically possessed by law-abiding citizens for lawful purposes.’”
As stated before, the AR-15 platform rifle, and similar variants, is America’s most popular sporting rifle, with an estimated 24.6 million Americans legally owning them. That places these rifles squarely into Caetano’s ruling as they are “typically possessed by law-abiding citizens for lawful purposes.” Justice Alito even went a step further in Caetano and stated, “A weapon may not be banned unless it is both dangerous and unusual … the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.”
In the case of the New York State Rifle & Pistol Association, Inc. versus Bruen, a two-step analysis of any gun legislation will now apply. The first step for a court is to determine whether the weapons in question are covered by the text of the Second Amendment, which means weapons that are “in common use” for lawful purposes (Bruen affirmed this test from Heller).
Essentially, if a court decides that a ban applies only to weapons not in common use by law-abiding citizens for self-defense, that is the end of the inquiry, and the proposed legislation is lawful. If the ban covers at least some weapons in common use for self-defense, then the court must come forward with similar laws showing that the ban is consistent with America’s historical tradition of firearms regulation and prohibition.
From the majority opinion in Bruen itself:
"In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means-end scrutiny. HN11 We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s [*2130] conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
-Konigsberg, 366 U. S., at 50, n. 10, 81 S. Ct. 997, 6 L. Ed. 2d 105.
It will be interesting to see how future attempts to ban “assault weapons” measure up to these new constitutional boundaries set by rulings like Caetano, Heller, and Bruen. What we do know is that the attempts to implement sweeping gun control measures are not looking very promising for anti-gun advocacy groups and lobbyists these days.
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