Are gun advocates right when they say they have a constitutional right to carry assault weapons such as the AR-15 and large capacity clips? Recent court decisions suggest not.
Until the U.S. Supreme Court reviewed in 2008 a handgun ban in District of Columbia v. Heller, it was unclear whether the Second Amendment was a collective or personal right.
The court’s holding that the amendment conveys a personal right to own handguns was significant, but so too was how Justice Antonin Scalia expressly limited the court’s holding. The Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” and the government may prohibit “dangerous and unusual weapons.”
In pronouncing this limitation, the court reflected on its holding in United States v Miller in 1939, where it upheld a ban on short-barreled shotguns. The Heller court saw its earlier decision to mean that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”
So, do private citizens have the right to own assault weapons similar to those carried by modern day militia? Isn’t there a connection in this awkwardly worded amendment between the prefatory clause—“A well regulated Militia, being necessary to the security of a free State”—and the operative clause—“the right of the people to keep and bear Arms, shall not be infringed?” Perhaps not.
The Heller court held that the government might have the right to limit ownership of “M-16 rifles and the like” even though these weapons “are most useful in military service.” The connection between these phrases has diminished over time, as “modern developments have limited the degree of fit between the prefatory clause and the protected right.”
In 2010, the court reviewed a Chicago handgun law similar to the one reviewed in Heller. Striking down the ordinance as unconstitutional in City of Chicago v. McDonald, the court went one step further and declared that the Second Amendment applies to state and local governments.
Still, the court repeated its limitation from Heller: “Nothing 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.”
These cases tell us we have a constitutional right to have a handgun in our homes for the purpose of self-defense, and that the government has the right to regulate possession and ban certain types of weapons. Where do assault weapons fit in?
We know from several federal appellate courts that machine guns fall outside the Second Amendment. Since 2008, three different federal appellate courts, citing Heller, have upheld bans on machine guns, referring to them as either “not typically possessed by law-abiding citizens for lawful purposes” or as “dangerous and unusual weapons.”
So, are assault weapons like the AR-15, which are not fully automatic like machine guns, protected by the Second Amendment because they might be used for self-defense, or are they “dangerous and unusual weapons” that are “not typically possessed by law-abiding citizens for lawful purposes?”
Not surprising, the “gun grabbers” and “gun nuts” (terms coined by UCLA law professor Adam Winkler) view the Supreme Court decisions differently. Speaking on PBS after the McDonald case was decided, Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, interpreted the cases to mean that “the extremes are off the table … you can’t have gun bans, but you can’t have this anybody, any gun, anywhere vision that I think [the National Rifle Association] pushes sometimes.” Wayne LaPierre, executive vice president for the NRA, saw the cases as creating the opportunity for “restrictions and roadblocks” that “prevent the average citizen from getting access to this freedom.”
The assault weapon question was answered by one court in 2011 in a second suit filed by Dick Heller, the plaintiff from the landmark Supreme Court case. This time, Heller challenged an ordinance that banned AR-15s and magazine clips that hold more than 10 rounds. In a case often referred to as Heller II, the Court of Appeals for the District of Columbia upheld the ban. Quoting from Heller I, the court referred to AR-15s as “dangerous and unusual” and based its decision on the important government interest in “protecting police officers and controlling crime.” Now back at the trial court, Heller II could conceivably find its way to the Supreme Court in a few years.
The issue isn’t nearly as clear as the NRA blusters it is, and it’s just possible the NRA is wrong.
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