It’s a good moment to remember that assault weapons can, and should, be legally banned. We’ve already got a sterling legal template for that argument.
Just a year ago, the Fourth Circuit—which hears federal appeals from Maryland, North Carolina, South Carolina, Virginia and West Virginia—issued a landmark gun control opinion upholding a ban on 45 kinds of assault weapons and magazines that hold more than 10 rounds of ammunition.
The court heard the case “en banc,” meaning that instead of allowing a three-judge panel to have the final word, a majority of the Fourth Circuit’s active judges decided that the entire court should weigh in. The result: A 10-4 ruling determining that the Second Amendment doesn’t apply to “weapons of war.”
The case arose out of a challenge to Maryland legislators’ post-Sandy Hook law.
In response to Newtown and other mass shootings, the duly elected members of the General Assembly of Maryland saw fit to enact the State’s Firearm Safety Act of 2013 (the “FSA”), which bans the AR-15 and other military-style rifles and shotguns (referred to as “assault weapons”) and detachable large-capacity magazines. The plaintiffs in these proceedings contest the constitutionality of the FSA with a pair of Second Amendment claims — one aimed at the assault weapons ban, the other at the prohibition against large-capacity magazines — plus Fourteenth Amendment equal protection and due process claims.
The Fourth Circuit issued a banner ruling shutting the plaintiffs down.
We conclude ... that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.
In addition to reviewing the deeply military history of assault weapons in the United States to illustrate why assault rifles and large-capacity magazines can most aptly be described as “weapons of war,” the court made a point about semiautomatic versus automatic weapons often neglected elsewhere.
Various firearms companies have since manufactured civilian versions of the AR-15 and AK-47 that are semiautomatic but otherwise retain the military features and capabilities of the fully automatic M16 and AK-47. Several other FSA-banned assault weapons are — like the AR-15 and semiautomatic AK-47 — semiautomatic versions of machine guns initially designed for military use. The difference between the fully automatic and semiautomatic versions of those firearms is slight. That is, the automatic firing of all the ammunition in a large-capacity thirty-round magazine takes about two seconds, whereas a semiautomatic rifle can empty the same magazine in as little as five seconds.
Apropos of Trump’s current arm-the-teachers rant, the Fourth Circuit also noted the absolute absence of evidence for a self-defense rationale.
Neither the plaintiffs nor Maryland law enforcement officials could identify a single incident in which a Marylander has used a military-style rifle or shotgun, or needed to fire more than ten rounds, to protect herself.
In a delightful turn, the court supported its point by using the NRA against itself.
Studies of “armed citizen” stories collected by the National Rifle Association, covering 1997-2001 and 2011-2013, found that the average number of shots fired in self-defense was 2.2 and 2.1, respectively.
Also compelling: The court fully engages the oft-overlooked, extraordinarily compelling rationale for banning large-capacity-magazines, pointing to:
an important lesson learned from Newtown (where nine children were able to run from a targeted classroom while the gunman paused to change out a large-capacity thirty-round magazine), Tucson (where the shooter was finally tackled and restrained by bystanders while reloading his firearm), and Aurora (where a 100-round drum magazine was emptied without any significant break in the firing). That is, reducing the number of rounds that can be fired without reloading increases the odds that lives will be spared in a mass shooting.
Taking on plaintiffs’ central argument for why it is they should nonetheless have access to whatever weapons of war they wish to wield, their Second Amendment claim, the ten-judge majority makes short work of it.
The Second Amendment’s “core protection,” the Heller Court announced, is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Concomitantly, the Court emphasized that “the right secured by the Second Amendment is not unlimited,” in that it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court cautioned, for example, that it was not “cast[ing] 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.”
Of utmost significance here, the Heller Court recognized that “another important limitation on the right to keep and carry arms” is that the right “extends only to certain types of weapons.” The Court explained that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,” including “short-barreled shotguns” and “machine guns.” The Court elsewhere described “the sorts of weapons protected” as being “those in common use at the time,” and observed that such “limitation is fairly supported by the 35 historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
Heller was an abomination that distorted the Second Amendment in direct contradiction of a hundred years’ precedent to invent an individual right to bear arms, but not a total carte blanche to the NRA.
The four-judge dissent was, to put it as we’d say in my home state of North Carolina, rather salty.
Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.
It’s hard to take that last sentence as anything but a compliment. Or to see the majority’s opinion as anything but a blueprint for championing, and defending, gun control legislation.