An individual right to assault weapons

January 28, 2013

Constitution Right to Bear Arms(Editor’s note: After last month’s massacre at Sandy Hook, Washington looks poised to create its first new gun control law in 20 years. Throughout the month of January, we’ll be looking at the history and current landscape of gun control and gun ownership laws.)

Week 1: A right to arms? The real purpose of the Second Amendment

Counterpoint: The Second Amendment was intended to codify an individual right to bear arms

Week 2: Was the Second Amendment intended to be used by or against the states?

Week 3: Would New York’s new gun restrictions withstand Supreme Court scrutiny?

Week 4: What were Obama’s executive orders on guns and are they constitutional?

Senator Diane Feinstein (D-CA), flanked by a veritable arsenal of weapons that many deem inherently unsafe to have any place in civilized society, has unveiled the long-awaited proposal to renew and expand upon the expired Assault Weapons Ban (AWB) originally enacted in 1994.

But is such a ban constitutional?

The Supreme Court in District of Columbia v. Heller said that its decision in that case “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, . . . or laws imposing conditions and qualifications on the commercial sale of arms.”  Is this enough to save the new AWB?

The newly proposed AWB is not a “condition or qualification” on the sale of arms, and it is not a “longstanding prohibition.”  And that could be problematic for the future of this bill.

Let’s first cover quickly what this bill would ban.  It’s not about machine guns.  Those have been highly regulated since 1934 under the National Firearms Act.

In fact, one of the cases cited quite frequently (and incorrectly) for the idea that the right to bear arms is granted only to those in the militia, United States v. Miller, arose out of a challenge to the NFA.  In that case, Miller was challenging his conviction of possession of an illegal sawed-off shotgun.  The Court held:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

So Miller did not restrict the right to keep and bear arms to those who are members of a militia.  Rather, as Heller recognized, the Court stated that since the type of weapon had no reasonable relationship to the preservation of a militia (which Presser v. Illinois recognized was comprised of “undoubtedly . . . all citizens capable of bearing arms”), the prohibition of that type of weapon did not violate the Second Amendment.

This same logic, though, does not apply to the weapons at issue with the AWB.  First, as Senator Feinstein and other proponents of the ban point out, these weapons are “military-style.”  If they are “military-style,” how could it be argued that they bear no reasonable relationship to the preservation of the militia?  And if they’re not “military style,” what’s the point of banning them?

What’s more, Heller specifically recognized that, following Miller, the type of weapons protected by the Second Amendment were those “in common use at the time.”  The AR-15 platform is the single best-selling rifle in the country.  It certainly qualifies as being in common use.

While there were courts that upheld the 1994 AWB as constitutional, such as Olympic Arms v. Magaw, it’s critical to note that those decisions relied on a holding that there is no individual right to bear arms.  In light of Heller, Sen. Feinstein’s bill could be in for a rocky road.