Can the Government Ban 'Assault Weapons'? Constitutional Experts Weigh In

"I would not rely on courts to protect the second amendment."

This article is part of a series on Guns in America that explores the use of firearms in our country and the debate over gun control.

Since the shootings in Newtown, Connecticut, one of the major responses has been to increase restrictions on gun rights, presumably to reduce the probability that a mass shooting will take place.

But what if their proposed methods for doing so are unconstitutional? That's the argument advanced by some experts on constitutional law, who argue that the landmark cases of District of Columbia v. Heller and McDonald v. Chicago protect against the most controversial ideas being proposed, such as an assault weapons ban. Moreover, even some renowned liberal experts on the same law law admit that the tools available to the government are limited.

Key questions in the debate are: Can the government ban assault weapons without violating the Constitution? If so, why? To answer these questions, TheBlaze spoke to legal authorities on both sides of the ideological divide, including some truly famous names within the realm of constitutional law. What we found may surprise you.

I. Background: Heller, McDonald and the Limits of the Second Amendment

When it comes to the regulation of gun rights, two Supreme Court cases stand out as definitive: The 2008 case District of Columbia v. Heller, and the 2010 case McDonald v. Chicago. Both cases conclusively established that the individual right to keep and bear arms is protected by the Constitution, and that this right is in force whether one is talking about state-level gun law or federal gun law.

One might think this is the end of almost every gun law. After all, if there's a constitutional right involved, the assumption is that the government can't do anything to infringe on that right, right? Wrong. Every constitutional right has exceptions, or place where a right doesn't apply. For instance, the Supreme Court has found exceptions to the First Amendment to include things like fighting words, obscenity and words that present a "clear and present danger" (such as yelling "fire" in a crowded theater when no fire exists). That is, the government can regulate, and even ban, such exercises of "speech" without running afoul of the First Amendment.

Similarly, both Heller and McDonald set limits on the right to keep and bear arms, even as they affirm that that right exists. TheBlaze has covered some of those limits already, but for now, it's enough to quote from U.S. Supreme Court Justice Antonin Scalia's majority opinion in Heller, which sets up the current controversy:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Some of this might strike the reader as obvious. However, there is one point of vagueness, which is where most of the controversy in the current climate comes in. Scalia writes that "dangerous and unusual weapons" are not protected by the Second Amendment. This raises a very simple question: What counts as "dangerous and unusual?" In fact, what counts as "dangerous"? What counts as "unusual?" If a weapon is only dangerous, but not unusual, or only unusual, but not dangerous, is it protected by the Second Amendment? The answers to these questions aren't obvious, and they have real, non-academic implications for the government's power.

II. Can the government ban assault weapons?

The original Heller case involved a ban on handguns in the District of Columbia, which the court struck down. The reasoning, in its briefest form, was as follows:

The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.[...]
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the Americanpeople have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upperbody strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

In other words, the problem with the ban on handguns was simple: Handguns are a class of weapons that are commonly used. This would seem to suggest that the reference to "dangerous and unusual weapons" really should have emphasized the "unusual" part, given that all weapons are (relatively) dangerous.

On these grounds, at least one expert would toss out assault weapons bans entirely. That expert, Randy Barnett of Georgetown Law Center, explained his reasoning to theBlaze via phone:

"When you get down to specifics, I think some of the easier cases for finding unconstitutionality is the assault weapons ban, which bans a weapon in common use, which is the phrase that Heller used to describe the weapons that are protected by the Second Amendment," Barnett told TheBlaze. "There's hardly a weapon that's in more common use than the AR-15 so-called assault weapon. I say so-called, because we all know this is a made-up category. They don't fire any faster than a constitutionally protected handgun fires, and it's typically less lethal than a handgun."

Barnett continued, "Because these weapons are in common use, it seems like it would be unconstitutional to ban them, especially given the irrationality of the statute in which cosmetic features are used to distinguish the bad guns from the good guns."

However, Barnett's opinion is not held by everyone. Laurence Tribe, of Harvard Law School, declined to comment directly on this story, but forwarded TheBlaze an unedited version of his own testimony before Congress on this topic via email. Tribe takes a much more generous view of the question of assault weapons bans.

"Heller recognized that dangerous or unusual weapons may be and have historically been heavily regulated or banned," Tribe's testimony runs. "It is not inconceivable – indeed, it seems quite likely – that the court‘s pause to distinguish unusually dangerous weapons from widely possessed handguns had precisely the 1994 Assault Weapons Ban, which included a prohibition on high-capacity magazines, in mind. At the very least, the Heller majority recognized that the government could keep machine guns —M-16 rifles and the like—out of the hands of civilians. The Supreme Court thus emphatically rejected the extravagant, or as Justice Scalia characterized it, startling notion, still promoted by some, that the Second Amendment could fulfill its original purposes only if citizens were guaranteed a right to arm themselves to the teeth, matching in their private armories essentially the full array of weapons possessed by the United States Military."

Tribe continues:

Even if the characterization of these features as cosmetic were accurate, it would make little difference as a constitutional matter. In a recent televised interview, Justice Scalia explained the basis in history for exempting certain types of regulations from Second Amendment review. Certain limitations on gun ownership are constitutionally permissible, he contended, because there were some regulations that were acknowledged at the time [of the Founding. For example, there was a tort called affrighting . . . if you carried around a really horrible weapon just to scare people, like a head ax or something. . . . What the justice evidently meant was that regulating weapons because they are chosen specifically for their intimidating appearance is constitutionally unproblematic because the very use of intimidation is unnecessarily disruptive to organized society.
Even more important to the constitutionality of the assault weapons ban is the absence of any connection to the core Second Amendment right to defend oneself with a firearm. At this committee‘s hearing on January 30, several witnesses criticized the assault weapons ban on policy grounds, but in my role as a constitutional lawyer listening intently for arguments relevant to the proposal‘s Second Amendment propriety, I was struck by the failure of anyone‘s testimony to support these features as essential to self-defense. In fact, I have searched in vain for any reasoned arguments that pistol grips, forward grips, telescoping stocks, grenade or rocket launchers, and barrel shrouds are indispensable or even contribute to self-defense.

Interestingly, in the same testimony, Tribe does not dispute Barnett's characterization of the AR-15 magazine-fed semiautomatic rifle as a common weapon. In fact, he describes it as "America‘s most popular rifle." Nevertheless, for Tribe, the relevant point is not the fact that the weapon is common, but rather that it is unusually dangerous, an idea that Barnett disputes, arguing that handguns actually fire more damaging rounds than the AR-15.

Another interesting difference between the more liberal line taken by Tribe and the more conservative one taken by Barnett is in their perception of lower court decisions since Heller and McDonald were handed down. Tribe cites a recent decision by the DC Circuit Court of Appeals upholding Washington, DC's assault weapons to prove his points, whereas Barnett takes a much dimmer view of such cases.

"Many of the lower courts are engaged in what you might call civil disobedience against Heller and McDonald," Barnett told TheBlaze. "I would not rely on courts to protect the Second Amendment. The courts did not protect the right to keep and bear arms until 2006, and yet nevertheless we had such a right, and that right we had as a result of political action."

However, there is a compromise position between these two arguments, advanced by none other than Robert Levy of the Cato Institute, who was actually one of the co-counsels in favor of gun rights in the Heller case itself. In an interview this January, Levy told the Washington Post:

We had an assault weapons ban from 1994 to 2004. The New York Times, after the ban expired, reported that despite dire predictions that the streets would be awash in military-style guns, expiration of the assault weapons ban has not set off a sustained surge in sales or caused any noticeable increase in gun crime. There are, of course, millions of these so-called assault weapons, and they’re used by millions of Americans for all sorts of things, including hunting, self-defense, target shooting, even the Olympics. Criminals use handguns because assault weapons are expensive and they’re difficult to conceal.
Now, [the Supreme Court] said that the Second Amendment would likely pose no barrier to outlawing weapons that are not in common use and are especially dangerous. And we have proof of that because fully automated weapons, like machine guns, have been essentially banned since 1934.
I don’t consider myself an expert on the technical features of firearms, and so I’m not prepared to say exactly which weapons would go on the list and which shouldn’t, but I think experts should be able to come up with a pretty good list — obviously not needed for self-defense, obviously dangerous, not in common use. And that would be the new assault weapons ban.

In other words, Levy argues, the idea of creating a category of uncommonly used weapons that are less dangerous than fully automatic weapons, but still dangerous relative to handguns, and banning that category of weapons from civilian use, is not unconstitutional. Whether that aim has been achieved in the current case is an issue that probably only courts can answer.

Here are the other pieces in our ongoing Guns in America series (running every Tuesday):