The Constitutionality of the Assault Weapons Ban

The Wall Street Journal poses a provocative and timely question: would a rejuvenated assault weapon ban pass constitutional muster?

The answer would have been an obvious Yes prior to 2008's District of Columbia v. Heller. Today, the question is closer. On the crucial question of whether Congress can ban the AR-15 rifle used in Newtown, I'm much less sanguine than Professor Winkler, who concluded that the Supreme Court would bend to political pressure and affirm a ban because "you don’t need an assault weapon for self-defense." We agree that the question is close, but because "need for self-defense" isn't the test under Heller, and because these firearms are unquestionably in common use for the purpose of self-defense--which is the test--I think it would take a sea change on the Court for a ban on the AR-15 to survive constitutional review. 

The 1994 Assault Weapons Ban

Despite its title and despite popular belief, the 1994 Federal Assault Weapons Ban (AWB) did not actually "ban" any class of weapons. Instead, it prohibited the new manufacture of firearms with certain design characteristics and magazines designed to carry more than 10 cartridges. Tens of millions of existing firearms and magazines manufactured before 1994 were grandfathered in, and manufacturers could bring firearms (though not magazines) into compliance with a few cheap tooling changes. Not surprisingly, during the 10 years between the law's enactment and its sunset in 2004, studies found no measurable effect on violent crime (the CDC concluded that it had "insufficient evidence to determine the effectiveness of any of the firearms laws or combinations of laws reviewed on violent outcomes"). The WSJ deftly dissects the weaknesses of this particular act, the value of which is today wildly exaggerated by nostalgia.

For the sake of clarity I should note the AWB never purported to regulate fully automatic firearms--like those used by combat troops--which have been strictly regulated by the National Firearms Act (NFA) since 1934. The rifles used in Aurora and Newton are semi-automatic, meaning they fire one round with each pull of the trigger. There remains a widespread belief that the AWB's sunset in 2004 made machine guns legal, and confusion persists in the media about the enormous difference between "semi-automatic" and "fully automatic" firearms (see Rupert Murdoch's tweet; a columnist's belief that the weapons used in these attacks are "apparently the same rifles used by troops in Afghanistan and Iraq"). To be clear: the AWB did not ban, and its sunset did not decriminalize, military-grade automatic firearms that fire more than one cartridge with each trigger pull. 

District of Columbia v. Heller

Forgetting for a moment about the AWB's many flaws, would a revived version survive constitutional review? In Heller, the Supreme Court struck down the District of Columbia's total ban on handgun ownership, holding that the Second Amendment protects, inter alia, the right to keep such arms "in common use at the time" in the home for the purpose of self-defense. It did not attempt to catalogue such weapons, but found that handguns, including presumably both revolvers and semiautomatic pistols, were "in common use" for self-defense, and were therefore protected.

However, the Court also acknowledged that the Second Amendment does not permit citizens to field weapons of war, such as fully automatic rifles or cannon. In typically originalist fashion, it located this limitation not in considerations of policy, but by reference to the "historical tradition" of prohibitions on "dangerous and unusual weapons." As surely as Heller defangs the sporting theory of the Second Amendment (the oft-repeated "no one needs assault rifles for deer"); it forecloses the various "watering the tree of liberty" arguments that assert the Second Amendment as a reserved right of insurrection in the face of government tyranny. Without a right to own Apache helicopters and surface-to-air missiles, a citizen insurgency would be lost before they could don their tricorner hats.

The "common use" test looks not to the empirical suitability of the banned class of firearm for self-defense, but whether it has been chosen for that purpose: "It is enough to note that the American people have considered the handgun to be the quintessential self-defense weapon." Although the majority could identify several practical reasons for the popularity of handguns, including the ease of storing and using them, it declined to rest suitability on any empirical finding.  Instead: "[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition on their use is invalid."

Throughout its decision the majority distinguishes between four categories of "use" for firearms. In the Heller universe, arms can be used for four things: sport (hunting and target shooting), military service, self-defense (defense of home in Heller, but as Judge Posner correctly notes, Heller's reasoning is in no way limited to the home), or they can be criminally misused. The majority held that the right to self-defense is privileged above the other three "lawful" uses, and consequently that the Second Amendment protects weapons in common use for this purpose. Firearms in common use for sport (such as bolt rifles), by military units (such as machineguns), or which are vulnerable to widespread criminal misuse (such as disguised firearms) do not receive this special protection. Only firearms in common use for self-defense fall within Heller's protected core, though in dicta the majority suggests some constitutional minimum for the other lawful uses.

Are the AWB's various definitions of "assault weapon" consistent with Heller's "common use" test? It depends. The AWB employs a baffling regime of firearm-feature checklists to separate assault weapon goats from legitimate firearm sheep. Because Heller looks to the extent of public adoption of a type of firearm for self-defense for its rubric, any legal analysis must include an analysis of the types of firearms captured by the AWB's definitions, and whether these definitions infringe on the right to own firearms that citizens have broadly adopted for defensive purpose.

"Pistol" Assault Weapon

Under the AWB definitions, a semiautomatic pistol that possesses two or more of the following features is an assault weapon under the Act:

• Magazine that attaches outside the pistol grip
• Threaded barrel to attach barrel extender, flash suppressor, handgrip, or suppressor
• Barrel shroud that can be used as a hand-hold
• Unloaded weight of 50 oz (1.4 kg) or more
• A semi-automatic version of a fully automatic firearm

The paradigmatic weapon described by two or more of these features could probably be banned under Heller. Although the Court noted that "handguns are the most popular weapon chosen by Americans for self-defense in the home," and held that their ubiquity made the prohibition invalid, the weapon that emerges from application of these AWB factors is a "handgun" only in the sense that it is not a rifle. These weapons bear little resemblance to the firearms most people would describe as handguns, and are more properly defined as semi-automatic submachine guns or machine pistols. Two typical examples are the Intratec Tec-9 (forward magazine, barrel shroud), and the Ingram Mac-10 (semi-automatic version of a fully automatic firearm, barrel shroud). Regardless of whether this class of firearms is inherently more dangerous than what most people think of as "handguns," the fact is these weapons are not by any stretch of the imagination "in common use" for self-defense in the home or outside of it, and a ban on their possession would survive scrutiny under Heller.

"Shotgun" Assault Weapon

The AWB defines a semiautomatic shotgun as an assault weapon if it has two or more of the following features:

• Folding or telescoping stock
• Pistol grip
• Fixed capacity of more than 5 rounds
• Detachable magazine.

Like the pistol features above, the AWB's shotgun provision probably does not bar possession of a class of weapons that are "in common use" for self-defense. Shotguns have long been a popular choice for home defense, but most Americans choose the slide- or pump-action shotgun, which for over a century has done yeoman work for hunting (birds and big game), shooting sports, law enforcement, military, and home defense. Pump guns are so commonly owned for self-defense that they are unquestionably "in common use" under Heller, but are irrelevant here because the AWB does not purport to ban any such shotguns.

Semiautomatic shotguns, which the AWB targets, are a perennial favorite for waterfowl hunting, where a quick second and third shot is vital, but the comparatively shaky reliability of these shotguns kept them out of law enforcement and military circles until recently. Today, although some civilians choose semiautomatic shotguns for home defense, they have nowhere near the widespread popularity of the pump gun, or of the handgun. Even if they did, those shotguns that would qualify as assault weapons under the AWB, including the marine corps M4, could be made ready for civilian use without compromising their effectiveness for home defense by swapping out the pistol grip stock for a conventional stock, or by limiting the tubular magazine to just 5 rounds. There's no doubt that a ban on assault shotguns as defined under the AWB would survive constitutional challenge.

"Rifle" Assault Weapon

The AWB also purports to regulate semi-automatic rifles that accept detachable magazines, like the one used by the Newtown shooter, with two or more of the following features:

• Folding or telescoping stock
• Pistol grip
• Flash suppressor, or threaded barrel designed to accommodate one
• Bayonet lug
• Grenade launcher* 

[*This AWB feature regularly causes consternation, but it does not refer to functional grenade launchers like the M203, which are "destructive devices" under the 1934 National Firearms Act--instead it refers to a metal adapter on the rifle's barrel that allows it to accept rifle grenades, themselves regulated under the NFA.]

This definition encompasses most variants of the single most popular and ubiquitous rifle in use by American civilians: the AR-15. A civilian-legal semiautomatic version of the U.S. Army's select-fire assault rifle, the AR-15 in its dizzying varieties is a star in the American firearm subculture, with its own forums, more than a hundred manufacturers, and a cottage industry catering to "mods," or components that allow owners to tailor their AR to the intended purpose, including target shooting, hunting, and self-defense. Given its ubiquity and its apparently chameleon-like ability to suit the purpose of the user, is the AR-15 in common use for self-defense under the Heller test?

I believe it is. This is one instance in which pro-ban rhetoric is severely counterproductive. Supporters of the AWB who argue that firearms like the AR-15 are good "only for killing" and "aren't necessary for hunting" are perversely adding fuel to the legal argument for protecting these weapons. After all, no one uses a .38 Special revolver for hunting, and like many handguns they are designed to efficiently kill hostile humans, but Heller guarantees every American the right to own one for precisely this reason. Millions of AR-15s are in private hands across America. They are not widely used for hunting--in many states the anemic .223 round does not meet the legal caliber requirement for large game--though it is a popular "varmint" round for coyote, woodchucks, and the like. Although the semiautomatic AR-15 superficially resembles the military-grade select-fire M-16, it is not suitable for military use, and none of the world's militaries issue such a weapon. The AR-15 is also not so susceptible to criminal misuse that it can be considered inherently "dangerous and unusual"; indeed, these types of weapons are used in just 2% of all firearm crimes, and are virtually impossible to conceal. What's left is self-defense. The survivalist with an AR-15 slung over his shoulder may inspire liberal loathing, but his "use" of that rifle is unquestionably self-defense. The suburban commando with a Wal-Mart AR-15 and magazines from eBay stashed in the back of her Hummer is likewise "using" it for self-defense.

The AWB rifle factors, particularly the folding stock, pistol grip, and flash suppressor, implicate design features that are central to the AR's utility and functionality for self-defense. To ban rifles that possess any two of these factors effectively bans the AR-15 for self-defense purposes, regardless of whether the ban includes, as the 1994 AWB did, a grandfather provision for firearms already manufactured. The question of whether this ban would survive challenge is much closer after Heller than the machine pistols and submachine gun variants of the first category or assault shotguns in the second, and I think it's frankly doubtful. AR-15s are wildly popular implements for defense of home, and are not "dangerous and unusual" in the same way as flamethrowers or cane guns. Instead, like pistols, the popularity of these arms represents the American public's settled judgment that they are ideally suited for their intended purposes. To the extent that these purposes include the lawful defense of home, an outright ban is outside Congress' power. 

Magazine Limitations

The 1994 AWB included a ban on new manufacture of detachable box magazines capable of holding more than 10 cartridges. A magazine is a device that holds cartridges for a firearm. In many types of firearms, the magazine is internal--such as the tubular magazines in many kinds of shotguns and .22 plinking rifles. In semiautomatic pistols and most semiautomatic rifles, the magazine is detachable. These magazines--often incorrectly called "clips"--are designed to carry a fixed number of cartridges, and facilitate quick reloading of the firearm. The number of cartridges that fit inside a magazine is a function both of the magazine's size and the size of the cartridge. 

Relatively small magazines can carry as many as 30 rounds of very small cartridges. Larger (and more lethal) cartridges take up more space, and consequently fewer fit into a typical box magazine. Many shooters who are recoil sensitive, such as women and the elderly, choose firearms that fire smaller cartridges, and which can carry correspondingly more rounds in a standard-sized magazine.  Handguns that carry 13, 15, or even 17 rounds of 9mm Parabellum have been popular self-defense firearms for over a century, in part because they allow a comparatively weak defender to fight off a much more powerful assailant without having to master the punishing recoil of a heavier caliber, such as the .45 Auto, with its comparatively smaller magazine capacity (typically 8).

Like the rest of the AWB, the 1994 "ban" on magazines only barred new manufacture, and millions of pre-ban magazines remained in the retail channel during the ten years of the Act. And like the rest of the AWB, the ban on magazines sunset in 2004.  Since that time, gun control advocates have sounded the alarm for a new ban, noting Jared Loughner's use of a 30-round magazine in his attack on Congresswoman Gabrielle Giffords, and James Holmes' use of a 100-round drum magazine (a magazine that reportedly jammed) in the Aurora, Colorado theater shooting.

Would a renewed ban survive the Heller mandate that Congress may not ban such weapons "in common use" for self defense? The answer is probably yes, but I'll begin by explaining why it might be close. A flat limit of 10 rounds per magazine severely hinders the utility of the humble 9mm automatic pistol, one of the most if not the single most popular handgun for self-defense in the country and unquestionably at the core of Heller's protection. However, it it does not work a total ban on these ubiquitous weapons, and I think courts would have to examine the magazine ban's burden under something like intermediate scrutiny rather than the Heller common-use test.

Here, the government is likely to prevail. The best argument against the law is that it is grossly under-inclusive and unfairly discriminates against women and smaller shooters: the flat cap of 10 rounds has no effect on the lethality of far more powerful firearms such as the 1911 and the Desert Eagle, even while it punishes smaller shooters who might prefer a 9mm, and have the same right to self-defense as large shooters. Bans on 20- and 30-round magazines for the AR-15 likewise impair the effectiveness of these popular self-defense weapons. But arguments from under-inclusiveness routinely fail. The Court has explained that Congress has the prerogative to solve problems "one step at a time," and has consistently rejected arguments that "all evils of the same genus be eradicated or none at all." Railway Express, 336 U.S. 106 (1949). Given the overwhelming political pressure to make sure Newtown never happens again, I'm skeptical that a magazine ban would fall even in the present Court. It would be unusually arbitrary and finicky, and the decision would subject the court to a firestorm of criticism.

A magazine ban targeting unusually large magazines for the type of weapon, such as the 30-round handgun magazine used by Loughner, or the 100-round drum used by Holmes, would unquestionably fail Heller's common use test, and these instruments could be wholly banned without controversy because they fall into Heller's "dangerous and unusual" category. The state can ban these curiosities without offending the citizenry's right to effective defense of the home, just as it can ban Stinger missiles and land mines. 

Conclusion

The march to new legislative gun controls, which appeared impossible not long ago, now seems inevitable in the wake of the horrific tragedy in Newtown, CT. The shape of these new controls is unknown, but the Supreme Court's 2008 decision in District of Columbia v. Heller has staked clear constitutional ground around firearms in common use for self defense that the 1994 Assault Weapon Ban would--in at least one crucial particular--violate. Legislators brave enough to attempt new gun controls in the face of an entrenched pro-gun lobby would be wise to craft a new statute that avoids these limitations, if for no other reason than to avoid a costly and demoralizing loss in the courts.