Banning America’s Rifle: An Assault on the Second Amendment? By Stephen P. Halbrook Civil Rights Practice Group The AR-15 rifle has aptly been called “America’s Rifle.” It is the most popular rifle in the United States, owned and used by millions of law-abiding citizens. Does prohibiting it infringe on About the Author: the right of the people to keep and bear arms as guaranteed by the Second Amendment? Stephen P. Halbrook is the author of several books on the Second This article begins with an examination of the meanings of Amendment and the right to bear arms, including The Right to term “assault weapon,” features that some lawmakers and activists Bear Arms: A Constitutional Right of the People or a Privilege of have claimed define such weapons, and the rarity of their use in the Ruling Class?; The Founders’ Second Amendment: Origins of the crime. It then analyzes how the Supreme Court’s jurisprudence Rights to Bear Arms; and Freedmen, the Fourteenth Amendment, on the Second Amendment, which protects firearms in common & the Right to Bear Arms, 1866-1876 (reissued as Securing Civil use for lawful purposes, precludes bans on such firearms. After Rights). He argued Printz v. United States, 521 U.S. 898 (1997), that, it examines the text, history, and tradition of the Second and represented a majority of members of Congress as amici curiae Fourteenth Amendments to show that the right keeps pace with in District of Columbia v. Heller, 554 U.S. 570 (2008), and was and continues to exist as technological improvements are made counsel for plaintiffs-appellants in Heller v. District of Columbia, to firearms. It demonstrates how judicial decisions upholding 670 F.3d 1244 (D.C. Cir. 2011) (“Heller II”). He was formerly laws that ban these commonly possessed firearms conflict with assistant professor of philosophy at Tuskegee University, Howard and undermine the right. It ends with a challenge to judges and University, and George Mason University, and he is a Senior litigants to take the Second Amendment seriously. Fellow at the Independent Institute. Some common myths must be cast aside at the outset for a serious consideration of the issue. The term “assault Note from the Editor: weapon,” while usually applied to some kind of rifle, is actually The Federalist Society takes no positions on particular legal and a pejorative term without a definite meaning. It was invented to sow confusion in the public between semiautomatic rifles and public policy matters. Any expressions of opinion are those of 1 the author. Whenever we publish an article that advocates for fully automatic military weapons like the M-16 rifle. So-called a particular position, we offer links to other perspectives on the assault weapons are semiautomatic firearms that, just like all other issue. We also invite responses from our readers. To join the semiautomatic firearms, fire one round for each pull of the trigger. debate, please email us at [email protected]. The features that make an otherwise legal semiautomatic firearm an “assault weapon” under various laws do nothing to affect the firearm’s functional operation and, if anything, promote safe Other Views: and accurate use. One purported feature called a “conspicuously protruding pistol grip” may be found on many, diverse types of • Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) rifles, including those used in the Olympics, and it promotes (Heller II), available at https://casetext.com/case/heller-v-district- accurate fire. Another frequently targeted feature, a telescoping of-columbia-10-7036-dc-cir-10-4-2011. stock, allows rifles to be better fitted to the stature of the user, • New York State Rifle and Pistol Ass’n, Inc. v. Cuomo, 804 much like a telescoping steering wheel, and hence promotes F.3d 242 (2d Cir. 2015), available at https://casetext.com/case/ comfort and accuracy. Surveys frequently show that self-defense ny-state-rifle-amp-pistol-assn-inc-v-cuomo. is a primary reason why individuals choose to own AR-15s and similar firearms. They are particularly attractive for women and • Josh Sugarmann, Assault Weapons and Accessories in older individuals because of their light weight and ease of use, America (Violence Policy Center 1988), available at http://www. particularly in comparison to shotguns. Rifles are used in crime vpc.org/studies/awaconc.htm. more rarely than other firearms, particularly handguns, and there • Jonathan E. Lowy, Comments on Assault Weapons, the Right is no evidence that any of the features targeted by assault weapon to Arms, and the Right to Live, 43 Harv. J.L. & Pub. Pol’y 375 bans has been the causal factor of any person’s death in a crime. (2014), available at https://www.harvard-jlpp.com/wp-content/ The Supreme Court has referred to the AR-15 semiautomatic uploads/sites/21/2020/03/Lowy-FINAL.pdf. rifle in the context of discussing the “long tradition of widespread lawful gun ownership” in America.2 In District of Columbia v. 1 See Josh Sugarmann, Assault Weapons and Accessories in America (Violence Policy Center 1988), available at http://www.vpc.org/studies/ awaconc.htm. 2 Staples v. United States, 511 U.S. 600, 610-11 (1994). 152 The Federalist Society Review Volume 22 Heller, the Court held that the Second Amendment protects arms because they are like machine guns, which they are not.9 Finally, that are typically possessed or in common use by law-abiding the First Circuit upheld Massachusetts’ ban based on “combat citizens for lawful purposes like self-defense.3 The right to bear features” that it never identified.10 arms was held to be a fundamental right that applied to the The U.S. District Court for the Northern Mariana Islands states through the Fourteenth Amendment in McDonald v. City saw through the haze and found that the pistol grip, adjustable of Chicago.4 The Court held in a stun gun case that the Second stock, and flash suppressor make a rifle more accurate and safer Amendment extends to “arms . that were not in existence at the to use for the law-abiding citizen. It therefore found that a ban time of the founding.”5 These decisions bear heavily on whether violated the Second Amendment.11 so-called assault weapons may be banned. Bans have been enacted in only a handful of states—only six After analysis of the above decisions, this article delves into ban certain long guns and handguns, one more bans just certain the Second and Fourteenth Amendments, with a focus on text, handguns, and eight ban certain magazines—and that some have history, and tradition. Adopted at the dawn of the age of repeating been upheld is hardly reason to infer that the federal judiciary firearms, the Second Amendment was understood to protect a in general agrees that the bans are constitutional. Judges from robust right to have “arms.” In the early republic, firearms of all the few states with an anti-gun political culture may reflect that kinds were considered the birthright of the citizen. Not being culture in their decisions. considered citizens, African Americans could be prohibited from More telling is that forty-four states have not defined “assault possession of arms. But the Fourteenth Amendment extended the weapons” as certain long guns and handguns and banned them; right to arms to all Americans, and such arms included repeating this could reflect that most lawmakers consider such bans to be firearms with extended magazines. unconstitutional and unproductive. Of course, the courts have Since the beginning of the 20th century, semiautomatic had no occasion to uphold or invalidate bans which do not exist firearms with detachable magazines have been commonly in these states. It’s no accident that eight of the thirteen federal possessed. Despite Jim Crow laws, semiautomatic rifles proved circuits have never considered, post-Heller, an assault weapon ban useful in protecting the lives and civil rights of blacks. There is under the Second Amendment. Like the dog that didn’t bark in no historical tradition in the United States of banning ordinary the Sherlock Holmes mystery,12 the silence is deafening. firearms or standard-capacity magazines. The first restrictions on This article analyzes the apparent disconnect between the the AR-15 and magazines of a certain capacity were only enacted decisions of the Supreme Court and those of the five circuits that in 1989 and 1990, respectively. have upheld bans. The issue is informed by the text, history, and Notwithstanding the above, five circuits have considered tradition of the Second and Fourteenth Amendments, which “assault weapon” and magazine bans and upheld them in each includes the development, use, and acceptance by the American case. Each case will be analyzed in depth. First to rule was the public the past century and a half of repeating and semiautomatic D.C. Circuit, which rejected common use as the test and relied firearms with standard-capacity magazines. Decisions upholding on legislative testimony to uphold a ban; then-Judge Brett bans on the arms that the people commonly keep and bear are out Kavanaugh wrote a spirited dissent.6 The Second Circuit next of touch with that background, depart from the clear test provided upheld Connecticut’s and New York’s bans without even analyzing by the Supreme Court, and substitute value-laden judicial the features that supposedly rendered the banned firearms balancing tests for the plain text of the Second Amendment. 7 unprotected by the Second Amendment. I. “Assault Weapon” Is a Political Term, Its Purported While these decisions conceded that the banned firearms Features Are Innocuous, and It Is Rarely Used In Crime and magazines are in common use, the Seventh Circuit (over a dissent)—upholding a local Illinois ban—questioned the viability A.