by Dave Kopel
America's 1st Freedom. April 2012
The U.S. Supreme Court’s decision in District of Columbia v. Heller seems to outlaw bans on AR-15s. Yet some courts are still upholding prohibition of this rifle.
Whether you will have the choice five or 10 years from now to buy an AR-15 is far from certain—and whether you will be able to keep the AR-15 you may already own is uncertain as well.
The development of the rifle known today as the AR-15 started in 1956. The strategy to ban it was unveiled in 1988.
At that time, Josh Sugarmann, former communications director of the National Coalition to Ban Handguns, pointed out in a strategy paper that the media had grown tired of the handgun issue, but “assault weapons” would be novel to them.
Further, he added in the memo, “The semi-automatic weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons” (“Assault Weapons and Accessories in America,” Education Fund to End Handgun Violence and New Right Watch, Sept. 1988).
Sugarmann was exactly right. The gun prohibition groups successfully created and then exploited public confusion. In 1989, California was the first state to ban so-called “assault rifles” or “assault weapons.” The gun-banners did not use the term “assault rifle” in the proper technical sense—that is, an intermediate power combat rifle that has a selector switch so that the gun can fire either automatically or semi-automatically. Instead, the prohibitionists tricked legislatures into banning guns that could only fire as semi-autos, but which lookedlike selective-fire military rifles.
Over the next several years, bans on the AR-15 and many other semi-auto rifles were enacted in New Jersey, New York, Massachusetts, Connecticut and the District of Columbia. The signature “achievement” of Bill Clinton’s first term as president was a national ban in 1994, prohibiting the manufacture of these firearms with their usual features such as adjustable stocks and flash suppressors.
The Clinton ban had a “sunset clause,” so it expired in 2004. As firearm manufacturers resumed production of these guns in their original form, the gun prohibition groups predicted mass carnage. Of course, the predictions never came true. The AR-15 and similar guns had rarely been used in crime before the ban, and criminal misuse remained rare after 2004.
The AR-15 has become very popular with law-abiding citizens. By 2007, even The New York Times wrote that the AR-15 and similar guns were often “the guns of choice for many hunters, target shooters and would-be home defenders” (Andrew Park, “A Hot-Selling Weapon, an Inviting Target,” June 3, 2007). In response to consumer demand, nearly a half million AR-15-type rifles were manufactured in the United States in 2009. These days, you can even buy one at Wal-Mart, which is a pretty good sign that these are popular, mass-market products.
While the prohibition groups hysterically clamor about “assault weapons,” more and more people are buying AR-15s, just as they’ve bought other rifles descended from military arms throughout history. There is a very long tradition in which the civilian versions of service rifles have become standard firearms for hunting, target shooting and lawful self-defense. The Spencer repeating rifles and 1903 Springfield bolt-action followed this path and so did the M1 Garand after World War II. This isn’t unique to America; the military 1898 Mauser quickly became one of the most popular actions for hunting rifles in the world. Today, the AR-15 continues that venerable tradition.
Yet New York City Mayor Michael Bloomberg, the gun-ban lobbies and the multitudinous groups funded by George Soros have kept the AR-15 illegal in some jurisdictions, and they continue to push for a national ban. President Obama ran on a platform in 2008 calling for a national ban, and as a U.S. senator and an Illinois state senator he voted to outlaw the AR-15 and many other guns.
The prohibitionists have convinced tens of millions of people that the AR-15 is some sort of ultra-powerful firearm that is meant to be spray-fired from the hip, for rapidly slaughtering people.
In truth, the AR-15 is at the low end of power among rifles. And when you pull the trigger, it only fires one round.
Yet owning an AR-15 is a serious crime in California, where one of every nine Americans resides. Additionally, north of Pennsylvania, the large majority of Americans live in states where to own an AR-15 is to be guilty of a crime comparable to a violent felony. Disgracefully, the AR-15 is also outlawed in our nation’s capital—a city where constitutional rights ought to be especially secure.
What did the landmark Heller decision have to say about banning guns like the AR-15? Justice Scalia’s opinion for the Court says that the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” The Heller decision interpreted a 1939 Supreme Court case, United States v. Miller, as standing for the principle that the Second Amendment has historically protected guns “in common use at the time,” rather than “dangerous and unusual weapons.” While some scholars have disagreed with the court’s reasoning, the court went on to suggest that bans on short shotguns, short rifles and machine guns are not unconstitutional because those guns are not among the type of “arms” protected by the Second Amendment right.
Almost immediately after Heller was decided, the Brady Campaign began insisting that bans on the AR-15 and all other so-called “assault weapons” were allowed, because these guns were “dangerous” and “unusual.” That’s a major misreading of the Heller decision, but essentially the same propaganda that anti-gun groups have been pushing since the 1980s.
In fact, the guns are not more “dangerous” than other standard firearms. They do not fire faster, nor do they fire more powerful ammunition. And they are certainly not “unusual.” Today, the AR-15 is the best-selling firearm in the United States. Instead, widespread experience demonstrates the AR-15 is “in common use” and is “typically possessed by law-abiding citizens for lawful purposes.” There are more than 3 million of them in the hands of law-abiding American citizens.
In 2009, the California Court of Appeal (the court between the state trial courts and the state Supreme Court) upheld the state’s “assault weapon” ban. People v. James involved a criminal defendant who continued to possess firearms in violation of a restraining order. Michael James was prosecuted not only for violation of the restraining order, but also for possessing guns that even law-abiding Californians cannot legally possess, including a Bushmaster XM-15 (a variant of the AR-15).
The three-judge panel ruled that the Bushmaster is entitled to no protection under the Second Amendment. To uphold the ban, the court relied almost entirely on the legislative “findings” that had been part of the enactment of the California ban by a panicked state legislature.
According to the 1989 California legislature, the AR-15 “has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.” The legislature also claimed that it had no intent “to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice or other legitimate sports or recreational activities.”
The legislative findings about rate of fire and danger are palpably false. Moreover, the legislative findings are a tacit admission that the legislature entirely disregarded whether the AR-15 was suitable for self-defense, because the legislature did not include self-defense among the “legitimate” uses of firearms. Opposition to self-defense is the longstanding position of the gun prohibitionist groups. The Heller decision, however, declares that self-defense is the “core” of the Second Amendment. The James court either overlooked or ignored the legislature’s illegitimate, unconstitutional desire for people to have only “recreational” guns and not self-defense guns.
The James court therefore wrongly concluded that the AR-15 and similar firearms “are not in common use by law-abiding citizens for lawful purposes.”
For understandable reasons, courts tend to be hostile to Second Amendment claims when they are raised by criminals, such as James. The possibility of victory is greater when a carefully framed case is brought by the National Rifle Association on behalf of law-abiding citizens.
Such was the challenge to the District of Columbia’s “assault weapon” ban brought by the NRA. The case is known as Heller II, since the lead plaintiff is Dick Heller, the winning plaintiff in the first Heller case. In the case, Heller and several other D.C. gun owners challenged the ban, along with several other provisions of the District’s laws.
D.C.’s “assault weapon” ban is the most extreme in the nation. The D.C. Council has outlawed all semi-auto firearms that take detachable magazines and that have one or more characteristics from a list of supposedly military features. The District also bans “[a]ny firearm that the Chief may designate as an assault weapon by rule, based on a determination that the firearm would reasonably pose the same or similar danger to the health, safety, and security of the residents of the District as those weapons enumerated.”
The attorneys arguing the case for Heller and the other plaintiffs were longtime gun law experts Stephen Halbrook and Richard Gardiner. The mass of evidence they presented proved beyond any doubt that the AR-15 is a very common firearm and is typically used by law-abiding citizens for lawful purposes. Of course, they also presented evidence about the other guns banned by D.C.
When the case got to the United States Court of Appeals for the District of Columbia, the three-judge panel split 2-1, with two of the judges voting to uphold the D.C. ban. Judge Douglas Ginsburg (no relation to Supreme Court Justice Ruth Bader Ginsburg) wrote the opinion for the majority.
He accepted the plaintiffs’ proof about the common use of AR-15s: “We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in ‘common use,’ as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000.”
But, Judge Ginsburg continued, even if AR-15 rifles and normal sized magazines are protected by the Second Amendment, they may still be banned.
How could this be?
In modern constitutional law jurisprudence, one of the common ways for judges to examine an issue is through “tiers” of “scrutiny.” First, the judge decides if something is part of a constitutional right. According to Heller II, rifles like the AR-15 are part of the Second Amendment right. (In contrast, according to the Supreme Court’s original Heller decision, machine guns are not part of the Second Amendment right.)
Once it has been ascertained that something is part of a right, then the court decides to apply either “strict scrutiny” or “intermediate scrutiny.” The strict scrutiny test requires that the government have a “compelling” interest, and that the law be “necessary” to achieve that compelling state interest. Examples of issues that trigger strict scrutiny are government suppression of speech based on the content of the speech, as well as government discrimination on the basis of race.
In other constitutional situations, a court will apply “intermediate scrutiny.” Then, the government must have an “important” interest, and the law must have a “substantial” relationship to achieving that interest. Intermediate scrutiny is applied to government discrimination on the basis of sex, and to “time, place and manner” regulation of speech in public places.
The Supreme Court in Heller did not say whether the strict/intermediate system should be used in Second Amendment cases. However, since Heller many lower courts have been using this system, since it is familiar and well developed.
Judge Ginsburg in Heller II said that intermediate scrutiny should apply to the D.C. ban on semi-auto rifles. Relying heavily on the Brady Campaign’s testimony at a D.C. Council hearing, the judge announced that semi-auto rifles are so dangerous that the D.C. ban passed intermediate scrutiny.
The majority’s reasoning in Heller II had several problems. First of all, the judges picked the wrong standard. As First Amendment jurisprudence shows, when the government regulates how a right is exercised in a public place, then intermediate scrutiny may be the appropriate standard. But when the government entirely bans one form of exercise of the right, then strict scrutiny is necessary. Because the D.C. law was a total ban on possession of many firearms in the home, rather than a regulation about how they could be used or transported in public, strict scrutiny should have been the rule.
Second, dissenting Judge Brett Kavanaugh pointed out the error in how the majority actually used strict scrutiny. Under Heller, semi-auto handguns, as a general class, are constitutionally protected. (That’s because Heller protects handguns in general, and 80 percent of new handguns are semi-autos.) Therefore, the mere fact that a long gun is semi-automatic cannot be a constitutionally legitimate reason to ban it. As Judge Kavanaugh wrote, “In attempting to distinguish away Heller’s protection of semi-automatic handguns, the majority opinion suggests that semi-automatic rifles are almost as dangerous as automatic rifles (that is, machine guns) because semi-automatic rifles fire ‘almost as rapidly.’ … Putting aside that the majority opinion’s data indicate that semi-automatics actually fire two-and-a-half times slower than automatics, the problem with the comparison is that semi-automatic rifles fire at the same general rate as semi-automatic handguns. And semi-automatic handguns are constitutionally protected under the Supreme Court’s decision in Heller. So the majority opinion cannot legitimately distinguish Helleron that basis.”
The majority had swallowed the Brady Center’s absurd claim that semi-auto rifles with detachable magazines are designed for “offensive military” action. Judge Kavanaugh noted that officers of the D.C. Metropolitan Police Department carry semi-auto rifles in their patrol cars. The only reason for D.C. police to carry any type of firearm, including a rifle, would be for lawful self-defense or defense of others.
Accordingly, the actions of the D.C. police prove the falsity of the D.C. Council’s claim that semi-auto rifles are primarily for offensive military use. And there is the obvious fact that the many millions of Americans who have owned such rifles for decades have been using them for lawful defense and for sport—not for “offensive military” purposes.
Judge Kavanaugh also argued that the Supreme Court in Heller had refused to employ the strict/intermediate scrutiny system. Instead, the Court had suggested that the gun controls that were “presumptively lawful” (e.g., bans on gun possession by felons or the mentally ill; regulations on the commercial sale of firearms) were those that had a solid basis in American history and tradition. But bans on semi-auto rifles have no such basis in history and tradition. Indeed, D.C.’s extremely broad ban has no counterpart anywhere else in the United States, or ever in American history.
What comes next depends on this November’s elections. The Constitution gives Congress plenary power over D.C., so Congress could pass, and a new president could sign a law repealing the outrageous Second Amendment violations in our nation’s capital. Obama, however, would certainly veto such a law.
Second, the president who is elected in 2012 will likely have the opportunity to make several Supreme Court appointments. One more Obama appointment could be enough to overturn the 5-4 Heller decision. Or an Obama court could interpret Heller in a constricted manner, as did the judges in James and Heller II, thereby giving sanction to semi-auto bans and other restrictions nationwide. That’s an issue that every AR-15 owner, and every gun owner, should remember on Election Day.
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