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Are “Assault Weapons” Bans Constitutional?

March 21, 2018

Lately, I’ve seen plenty of chatter from anti-gun crusaders on Twitter and other platforms suggesting that because the U.S. Supreme Court has upheld some “reasonable” restrictions on Second Amendment rights, more sweeping limitations (infringements) such as “assault weapons” bans are also totally constitutional. So convinced are some of these folks that a few of them, like MSNBC’s Ari Melber, took to the airwaves (embedded below) to share their assertions. Let’s take a closer look at some of these claims.

Ari’s argument is flawed from the get-go. He’s right that the Supreme Court hasn’t ruled on “assault weapons,” but it’s asinine to think that such a fact could mean they aren’t protected. Some appellate courts have held that they are not protected by the Second Amendment, but circuit court decisions apply only to the circuits for which they have jurisdiction. Precedent is not set, at least not precedent that applies outside the relevant Circuit. Peer courts aren’t beholden to these rulings, and they can (and frequently have) depart from the past rulings of their judicial equals. Often, splits at the appellate level provide sufficient motivation for the Supreme Court to hear a case.

Parties who would like to present their case to the Supreme Court file something called a petition for certiorari (cert for short). If the court accepts, they then issue a writ of certiorari. Here’s the thing, though: the U.S. Supreme Court receives thousands of petitions each year. Since there’s absolutely no way, a 9-justice court could hear that many cases, some (most) petitions are denied.

This is the part that folks like Melber and many other journalists get wrong. Denying cert does NOT mean that the highest court approves of a lower court’s decision. More importantly, cert denial sets no precedence with respect to the Supreme Court. We should all be thankful for this, too. If the Supreme Court literally cannot hear the overwhelming majority of cases with which it is presented, a system where precedent could be established just because the high court didn’t have time to hear a case would be completely untenable, and loads of bad lower decisions would be forced upon the nation as a whole.

Now, why does this matter? Well, central to Melber’s point was the fact that a handful of Circuit Courts – most notably the 4th Circuit of Appeals (Kolbe v. Hogan) – have held that “assault weapons” bans are constitutional. And according to him, because the U.S. Supreme Court denied cert to plaintiffs (like Stephen Kolbe), the Supreme Court must agree with the lower decision. That’s simply untrue. It’s no doubt bad news for Kolbe and others who live under a cloud of the 4th Circuit, but the ruling has no impact on those of us in other parts of the country.

Now that we have that out of the way let’s take a look at a few other cases that might impact the constitutionality of certain weapons bans. In 1939, the U.S. Supreme Court issued a ruling in the United States v. Miller, which allowed the government to regulate short-barreled shotguns under the National Firearms Act. Miller is a peculiar case for many reasons, not the least of which is the fact that Jack Miller was a bank robber who was killed prior to the case’s hearing. Ultimately, this led to his defense failing to show up at all, and the rest, as they say, is history – sort of.

Thanks to those circumstances, Miller is one of those cases where both sides of the gun issue find elements of victory. Though the court did uphold the NFA, at least with respect to short-barreled shotguns, they did so by affirming that those firearms which are useful for militia purposes are protected by the Second Amendment:

“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. Certainly, it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

– Justice James McReynolds, United States v. Miller

This naturally leads us to ask whether the right to bear arms is collectively held by sanctioned, organized militias or individuals. As constitutional questions go, this most certainly has to be one of the most consequential and most frequently debated, but for the time being, it has been fairly well settled by Heller. We’ll talk about that more in a moment, however for reference, here is the full text of the Second Amendment:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

You’ll often find that proponents of gun control argue two points. The first is the aforementioned question regarding collective and individual rights. The second is their belief that the phrase “well regulated” means that the right to bear arms is subject to significant restrictions. Both of these are nonsensical on their face.

In a previous article, I discussed the meaning of “well regulated” in the necessary historical context. In short, it was not intended to be a limitation on the right to bear arms. Rather, it was an observation that a properly working (trained and equipped) militia was necessary for the preservation of a free nation.

“I ask who are the militia? They consist now of the whole people, except a few public officers.”

– George Mason, Address to the Virginia Ratifying Convention, June 4, 1788

Mason’s famous line at the Virginia Ratifying Convention is unambiguous and reflects a commonly held belief at the time of the Constitution’s drafting. The Militia Acts of 1792 stated that all able-bodied white males between 18 and 45 were to make up the militia – which was taken as a preexisting group independent of Article I, which outlines the federal government’s ability to organize (but not necessarily create) the militia. However, this definition isn’t an anachronism today. The Militia Act of 1903 designated the National Guard as the organized militia, but it left intact the citizen militia known officially as the reserve, or unorganized, militia and which consists of all able-bodied men between 17 and 45 years of age. You can quibble over the defined age range, but that misses the point. This information is, at least somewhat, important to understanding the intent of the amendment – that the founders clearly saw the “right to bear arms” as being effectively universal.

However, the Second Amendment’s militia clause, while informative, is not a limitation on the right to bear arms:

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

– Justice Antonin Scalia, Heller v. District of Columbia

As further noted in Heller, it isn’t reasonable to conclude that an amendment that states “the right of the people” could mean anything other than an individual right:

The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

– Justice Antonin Scalia, District of Columbia v. Heller

In the majority opinion for Heller, Scalia further argues that “[n]owhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.” He concedes that in other documents, namely some state constitutions, there are examples where “the people” is used to convey certain collective themes, but not the Constitution.

So what of “assault weapons” and can they legally be banned? Based on the majority decision in Heller, probably not. As I mentioned earlier, this issue hasn’t been put to bed, but there’s a strong case that banning this particular classification of firearms is not constitutional.

Let’s first get something out of the way. A lot of anti-gun activists who fashion themselves as gurus on the topic like to point to a specific point in Scalia’s writing that seems to indicate weapons bans are okay. Here’s an excerpt from the relevant section:

Like most rights, the right secured by the Second Amendment is not unlimited… [C]ommentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

– Justice Antonin Scalia, District of Columbia v. Heller

There’s something noteworthy about this section as it relates to weapons bans. Nowhere does Scalia say anything at all about prohibitions on the types of arms that might be owned. Rather, he states that “courts routinely explained that the right was not a right to keep AND CARRY [emphasis added] any weapon whatsoever in any manner whatsoever and for whatever purpose.” His example then includes limitations on concealed carry in the 1800s. He wasn’t even talking about bans on certain classes of weapons and if he were, it most certainly would have been noted at the end of the paragraph where Scalia outlines several sorts of restrictions that might be constitutionally palatable.

When it comes to specific types of weapons, Scalia has this to say:

We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time…” The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense.

– Justice Antonin Scalia, District of Columbia v. Heller

Later, he says this:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time…” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.

Justice Antonin Scalia, District of Columbia v. Heller

Scalia’s majority opinion draws a connection between Miller’s “in common use” language and prohibitions on carrying “dangerous AND [emphasis added] unusual” arms. While this section reads as a limitation on the right and in many ways does limit what could theoretically be protected by the Second Amendment, it sets a standard that those arms which are commonly used for lawful purposes (such as self defense, hunting, competitive shooting, etc.) are indeed protected. As the AR-15 and other “assault weapons” are among the most popular (if not the most popular) firearms for these purposes, it’s difficult to see how sweeping bans could pass muster.

Before we leave Heller, there’s another section worth noting. At the end of the opinion, Scalia says this about the District of Columbia’s handgun law:

The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose [of self defense]. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster.

– Justice Antonin Scalia, District of Columbia v. Heller

In short, you can’t legally ban semi-automatic handguns. That pretty well puts to rest any ambitions people might have regarding full-on semi-automatic bans. However, it again calls into question the validity of bans on semi-automatic rifles, which are far more useful for defensive purposes than bolt-action rifles and even shotguns.

I could take a moment here to address McDonald v. Chicago, but I won’t spend much time on it. Mainly because that case was more or less a rehashing of Heller that simply expanded the Second Amendment to states in what is called incorporation. It’s more interesting to look at a very recent case that applied Heller to a tangentially-related concept. For this, we’re going to examine Caetano v. Massachusetts – the Supreme Court’s reversal of Massachusetts’ Taser ban.

It’s well known at this point that the nation’s highest court has been totally averse to post-McDonald Second Amendment cases, at least for the most part. Caetano is somewhat of an exception as the court extensively used Heller to invalidate the Massachusetts ban on stun guns and similar devices. In the majority decision, Justice Samuel Alito deals a few major blows to Second Amendment restrictions:

[The state’s] reasoning defies our decision in Heller, which rejected as “bordering on the frivolous” the argument “that only those arms in existence in the 18th century are protected by the Second Amendment.” 554 U. S., at 582. The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not.

– Justice Samuel Alito, Caetano v. Massachusetts

And he follows with this:

The Supreme Judicial Court’s holding that stun guns may be banned as “dangerous and unusual weapons” fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court’s conclusion that stun guns are “unusual,” it does not need to consider the lower court’s conclusion that they are also “dangerous.” See ante, at 1–2. But make no mistake—the decision below gravely erred on both grounds.

– Justice Samuel Alito, Caetano v. Massachusetts

In discussing what constitutes an “unusual” arm, Alito states that the existence of “hundreds of thousands of Tasers and stun guns” is sufficient evidence that they are in no way unusual. Considering that many estimates place overall semi-automatic rifle ownership in the tens of millions, there’s really no way to conclude that they are unusual and therefore, they cannot meet the conjunctive test.

If you’ve made it to this conclusion, you’re probably thinking, “Melber was totally off base and assault weapons bans are completely unconstitutional!” Not so fast. Yes, Melber and his supporters are wrong. But while there is compelling evidence to suggest that bans on common semi-automatic rifles are in violation of the Second Amendment, until the Supreme Court weighs in on the issue, it’s just, like, our opinion. At the same time, it’s safe to say that anti-gun assertions that Heller and other cases open the door for such a ban really isn’t true at all.

The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.

– Justice Antonin Scalia, District of Columbia v. Heller

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