'ASSAULT WEAPON' BANS: UNCONSTITUTIONAL LAWS FOR A MADE-UP CATEGORY OF FIREARMS.

• Author: Smith, Mark W.

I'm especially excited to talk about whether commonly owned semiautomatic rifles, which happen to have a handful of incidental features built in or attached to them, are protected by the Second Amendment. Spoiler alert: the answer is yes. Ordinary semiautomatic rifles, just like ordinary semiautomatic handguns, are protected by the Second Amendment's right to keep and bear arms. The U.S. Supreme Court's legal precedents confirm the same. These constitutional protections do not disappear merely because the anti-gun lobby chooses to label--or perhaps, more accurately, mislabel--these ordinary firearms as "assault weapons." Indeed, as Justice Thomas astutely recognized, the term "assault weapon" is "a political term, developed by anti-gun publicists." (1)

To make sure we're all on the same page about what is a supposed "assault weapon," I'd like to start with a key point: America's gun grabbers do not define "assault weapons" by how the firearms actually function. The banned so-called "assault weapons" are not the fully automatic rifles used by the military to fight the Taliban in Afghanistan. So-called "assault weapons," when discussed within America's gun control debate, constitute nothing more than ordinary semiautomatic rifles; a type of firearm, which civilians have used in the United States for well over a century. (2)

Semiautomatic firearms are "semiautomatic" because, when you pull the trigger once, the gun fires one bullet and automatically reloads, and that's it. (3) To fire another bullet requires the user to pull the trigger again. (4) But these ordinary firearms might look different than other firearms because modern day, yet very ordinary, semiautomatic rifles are often painted black; (5) they are not made in the brown wood stock you see on classic American hunting rifles. (6) This is relevant because it makes modern-style firearms look like or appear to be fully automatic M16 military rifles, when in reality they are not the same firearm as M16s.

Nevertheless, because of the rifle's appearance, coupled with certain features that are arbitrarily included in some "assault weapon" ban statutes, an ordinary rifle gets converted definitionally into an "assault weapon." (7) Some of the features that allegedly convert an ordinary rifle into a prohibited "assault weapon" include muzzle brakes, pistol grips, and adjustable shoulder stocks that enhance the utility of the firearm for self-defense. (8) These features make it easier for law-abiding Americans to shoot the firearms and shoot them accurately. Certain state legislatures assert that these features, either when added onto, or made an inherent part of, semiautomatic rifles, make these ordinary firearms "assault weapons." (9) These features, when added to or included with a semiautomatic rifle, somehow magically transform ordinary guns into an object that the anti-gunners have successfully banned in six states, plus the District of Columbia. (10)

Yet, semiautomatic rifles have been part of the American landscape for over 100 years. (11) From the anti-gun lobby's point of view, the scariest semiautomatic rifle is the AR-15 platform. This rifle platform is what the anti-gun movement and their handmaidens in the urban-based mainstream media like to display on television and in news articles because the rifle can appear scary looking to people unfamiliar with firearms, especially those living in the major media centers of Washington, D.C., New York City, Los Angeles, and Chicago. In reality, the AR-15 is not more powerful than any other centerfire semiautomatic rifle and, in fact, in typical calibers is less powerful than the rifles used to hunt deer.

The AR-15 platform was designed in the 1950s. (12) By the 1960s, the rifle was being sold in the U.S. civilian marketplace. (13) The AR in the name stands for Armalite, and not "assault rifle." (14) Armalite is the name of the company that first developed the AR-15. (15)

So, we've had the AR-15 platform itself being bought and sold in the United States for over fifty years. Unfortunately, for those millions of Americans who reside today in the six anti-gun states plus the District of Columbia, these ordinary firearms cannot be possessed, owned, or used by them. (16) An individual caught possessing an AR-15 in one of these few jurisdictions will become a felon and go to prison for a nonviolent, victimless, malum prohibitum crime. (17) That's right. Mere possession of an object that is commonplace and perfectly legal under federal law and in forty-four states will land you in prison, result in the loss of your rights including likely the right to vote, and probably cause you irreparable monetary and reputational damages, as well as your personal liberty. All of this despite the absence of even a single victim. And unfortunately, the federal courts are largely failing to do anything about this travesty.

To date, each court of appeals that has heard a so-called "assault weapon" case has ultimately decided against the citizen and in favor of the government. These legal challenges to "assault weapon" bans have been considered and rejected by the Second Circuit in New York, (18) by the D.C. Circuit, (19) by the Seventh Circuit in Chicago, (20) and by the Fourth Circuit in Maryland. (21)

So, given this dismal track record in court for an enumerated, fundamental constitutional right, why are we talking today about the U.S. Supreme Court and the rights of individuals to own ordinary firearms with certain features that some political partisans wrongly label "assault weapons"? Well, it's because of Judge Kavanaugh's elevation to the U.S. Supreme Court. You see, Justice Kavanaugh was the author of an approximately fifty-five-page opinion that applied the "text, history, and tradition" constitutional test to the technology of these semiautomatic firearms, (22) which were declared by legislative fiat to be "assault weapons" by the Council of the District of Columbia. (23) The name of this case was Heller II.

In Justice Kavanaugh's dissent in Heller II, he concluded that the Second Amendment protects an individual's right to keep and bear (that is, own, use, possess) these so-called "assault weapons." (24) This dissent is particularly significant because the Heller II majority opinion, which upheld the banning of these weapons, has become a super-legal precedent followed by other lower, or inferior, (25) courts when they uphold other gun bans. (26) Heller II is the foundational case that subsequent lower courts presiding over legal challenges to anti-gun measures rely on to say: "Sure. The state can ban them." And yet, the dissent to that view was written by now-Justice Kavanaugh.

So, will the Supreme Court address the question of "assault weapon" bans soon? I suspect that they will, and they should. After all, the individual right to self-defense is not only a fundamental constitutional right that all of us have--Democrats, Republicans, Independents, Libertarians. It's a human right. And it is also the central component of the Second Amendment, a right that is not given to us by any government. It is not given to us by any politician. It is bestowed upon us by our very existence as humans or, if you will, by God. And the Second Amendment doesn't give us that right; it simply recognizes this preexisting human right.

And the U.S. Supreme Court agrees with me. They agreed with me in District of Columbia v. Heller, (27) which by the way, was reaffirmed by the case of McDonald v. City of Chicago (28) and then reaffirmed in Caetano v. Massachusetts. (29) In Caetano, which I think applies to the question of so-called "assault weapon" bans, the Supreme Court held that any firearm that is bearable--bearable arms--is protected by the Second Amendment. (30) There, the Court dealt with a stun gun, (31) and I can assure you that the number of people in the United States that own semiautomatic rifles labeled "assault weapons" far outnumber the number of Americans that own stun guns. The U.S. Supreme Court found the Massachusetts Supreme Court applied the wrong test and remanded the case back to Massachusetts requiring a decision on whether stun guns were, in fact, protected weapons, or protected arms under the Second Amendment. (32) The Massachusetts Supreme Court got the message and struck down the commonwealth's stun gun ban using the common use test, (33) and a year later, the Illinois Supreme Court followed suit and struck down Illinois's stun gun ban. (34) Since AR-15s far outnumber stun guns, it follows then that AR-15s should be equally protected by the Second Amendment.

Now, in fairness, the Heller Court said there are certain types of weapons that can be banned if they are unusual, and if they are not typically owned by Americans for lawful purposes. (35) If they're not in common use by Americans for lawful purposes, the Supreme Court said, certain weapons are presumptively capable of being banned. (36) One of the examples they gave is a machine gun--which unlike the semiautomatic gun, which is one pull of the trigger, one bullet fired--will fire bullets for as long as the operator is depressing the trigger, until the gun becomes empty of bullets or the operator releases the trigger. (37) This is much different than a semiautomatic firearm, and the law recognizes this difference.

So, the question is, "What do these Supreme Court cases mean for so-called 'assault weapon' bans today?" Well, before I answer that question, I want to talk for a couple minutes about what exactly is an "assault weapon." If you take away only one thing from today, please remember this...