This is not a commentary about the terrible damage that can be done by the high-velocity, low-mass .223 bullet fired from an AR-15 compared with handgun bullets. It’s also not about the assertion that the AR-15 isn’t really an assault weapon because it’s semi-automatic, not fully automatic, even though it doesn’t take much practice for someone to be able to fire 60 or more rounds in a minute. People who want to argue that the AR-15 was originally meant for civilian use can take it up with retired Army Major Sam Pikula, who wrote “The ArmaLite AR-10 Rifle: The Saga of the First Modern Combat Rifle.” Or with the police officers in Uvalde, Texas, who delayed taking on the child murderer at Robb Elementary because “he has a battle rifle.”
The AR-15 is a close descendant of the AR-10, specifically designed for military use more than six decades ago. A veteran with first-hand experience treating combat wounds as a medical doctor and retired Air Force colonel, Dean Winslow, also has no illusions on this score. In testimony before the House Armed Services Committee in November 2017, he said he wanted to emphasize “how insane it is that in the United States of America, a civilian can go out and buy a semiautomatic assault rifle like an AR-15.” You can see Winslow making these comments at about time 1:19:00 in the video here.
This is also not a commentary about whether it makes sense to ban the AR-15 and certain other semi-auto rifles when the percentage of people killed with any kind of rifle is only 3% of the U.S. gun murder total, with more than 90% of gun murders committed with handguns. For decades, we’ve had plenty of such arguments in and out of the mass media, and they’ve all been repeated again in newspapers and social media since the Nashville massacre by a person armed with an AR-15, just as 10 of the 17 deadliest mass murderers in the past decade have been. And it’s also not whether a ban is a politically good idea or not. According to Pew Research, 81% of Democrats and even 50% of Republicans believe it is a good idea and the federal government should ban “assault-style rifles.” But that ample support, the especially dreadful effects of the AR-15 and similar weapons, and bloody classrooms from coast to coast aren’t going to bring on a new ban.
Scroll back to Dec. 14, 2012.
The shock of the slaughter of 20 first-graders and six staff at Sandy Hook Elementary sparked a move to make federal background checks mandatory for all gun purchasers and impose a renewed ban on assault weapons and magazines with more than a 10-round capacity. No close observer realistically thought that this ban Democratic Sen. Dianne Feinstein introduced would pass because, unlike in 1994, when the previous Feinstein-introduced assault weapons ban passed with eight Republican backers, bipartisan support was out of the question in 2013. Many people were nonetheless stunned when 15 Democrats and one Democrat-leaning independent joined all but one Republican in crushing the bill in a 40-60 vote, the exact opposite of the count advocates of the ban needed. And though 54 senators voted for a universal background check bill, it failed to get the 60 votes needed to avert a filibuster.
Three months ago, just as she did in every succeeding session since 2013, Feinstein introduced a renewed ban—S.25, the Assault Weapons Ban of 2023. It has 41 co-sponsors, all of them Democrats. So far, the Judiciary Committee has yet to schedule a hearing on the bill. The Senate is a very different place than it was a decade ago. The only Republican who voted for the ban in 2013 is no longer a senator. Likewise for 11 of the Democrats who voted against it. Three of the six of them still in the Senate—Mark Warner of Virginia, Michael Bennet of Colorado, and Martin Heinrich of New Mexico—have changed their minds and now support a ban. But three others—Joe Manchin of West Virginia, Jon Tester of Montana, and independent Angus King—still oppose it. At best, that means 48 votes for a ban. An improvement but still far short of the needed 60 votes.
If there were some astonishing epiphany on the Republican side of the aisle, or if Democrats were to turn the tables in the Senate the way Republicans did in 1994, then some future Senate (together, of course, with a Democratic House) might pass an assault weapons ban. But by the time either of those highly unlikely possibilities occurs, the Supreme Court is almost certain to rule on something it never has before: the constitutionality of such bans. Predicting how the court majority will come down is no slam dunk. But the court’s 21st Century reinterpretation of the 18th Century Second Amendment suggests that overturning assault weapon bans is not just possible but probable.
As widely reported, the Supreme Court’s rulings in District of Columbia v. Heller (2008), McDonald v. City of Chicago (2010), and New York State Rifle & Pistol Association, Inc. v. Bruen (2022) are reshaping what lower courts are deciding in gun cases. That’s due to the legal standard originated by Clarence Thomas. This eliminates the balance of interests test for the constitutionality of a firearms law and instead mandates a text-and-history test of legal analogs dating back to 1791 as the only allowable gauge of a law.
Previously, in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias. And thus, the amendment must be “interpreted and applied with that end in view.” No longer. The Heller ruling upended that precedent by proclaiming for the first time that individuals in the District of Columbia have the right to possess loaded firearms at home for self-defense without this being connected to the well-regulated militia cited in the Second Amendment. Specifically, writing for the majority, Justice Antonin Scalia wrote from the outset of the ruling that the amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” McDonald extended protections of this newly asserted individual right to the states the same way other rights have been conferred by the Fourteenth Amendment.
Following those two cases, lower courts have evaluated gun laws with a two-step process that combines text-and-history with means-end scrutiny to determine whether a firearms law is constitutional. That second step is an interest-balancing inquiry that requires consideration of the public benefits of such laws. But in the Bruen decision, the court majority specifically decided that the two-step process is one step too many. Courts, it said, must now decide cases only on the basis of, in Justice Thomas’s words, the “historical tradition of firearm regulation.” The court in Bruen ruled unconstitutional a 111-year-old New York law requiring anyone applying for a permit to carry a concealed firearm must present a “proper cause” for doing so. That, the justices said, allows for arbitrariness in deciding who gets a permit or doesn’t.
The 6-3 ruling written by Thomas states:
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
The court did not go as far in Bruen as some critics thought it might. It didn’t rule that nobody needs a permit to carry a concealed firearm, a stance called “constitutional carry.” No-permit-required laws have been passed in 26 states, with two more likely to join them this year. Nonetheless, the full extent of Bruen is not yet clear. For one thing, a rewritten version of the New York permit law is still being litigated. However, one thing for sure is that New York and the six other states and the District of Columbia that include some version of “proper cause” requirements will have to shift from being “may issue” jurisdictions to “shall issue,” meaning that anyone who can legally own a firearm must be given a permit.
The ultimate reach of Heller, McDonald, and Bruen can only be guessed at with trepidation. The late Justice Antonin Scalia wrote in 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 on “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” The ruling also says laws that bar “the carrying of ‘dangerous and unusual weapons.’” are legit. Many in the legal community have suggested this means assault weapons bans will pass muster with the court. Maybe. But probably not.
Two cases show the risk.
In 2013, Maryland enacted an assault weapons ban in the wake of the Sandy Hook massacre. In 2020, Dominic Bianchi and others sued the state Attorney General Brian Frosh in a challenge to the ban. The district court dismissed the case, and the Fourth Circuit Court of Appeals did likewise, noting that the suit was “squarely foreclosed by this court’s decision in Kolbe v. Hogan,” which had upheld the ban. But in June 2022, the Supreme Court vacated and remanded the lawsuit back to the Fourth Circuit “for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen.”
California was the first state, in 1989, to pass an assault weapons ban after a shooter murdered five children and wounded dozens of others in a Stockton schoolyard with a semi-automatic variant of the Russian AK-47. The California Supreme Court upheld the ban. But in 2019, James Miller, joined by several gun rights organizations, challenged the ban’s constitutionality in a lawsuit, now called Miller v. Bonta, the latter being Ray Bonta, California’s attorney general.
In June 2021, Judge Roy Benitez of the U.S. District Court for the Southern District of California—appointed by President George W. Bush despite receiving an “unqualified” rating from the American Bar Association—ruled that the state’s assault weapons ban was unconstitutional. He argued from the opening paragraph of his opinion that “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v. Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR-15-type rifle. Therefore, this Court declares the California statutes to be unconstitutional.” That and the judge’s other firearms rulings have spurred gun rights advocates to nickname him “Saint Benitez.”
Benitez’s injunction against the ban has been stayed while appeals play out. Last August, the Ninth Circuit Court of Appeals vacated and remanded his ruling for reconsideration under Bruen. That new ruling from Benitez could come in days. It’s hard to imagine him retreating from his original take. The generally liberal Ninth Circuit could reverse Benitez’s decision if he does rule the assault weapons ban is unconstitutional. After all, it reversed Benitez’s decision in Duncan v. Bonta in which he ruled unconstitutional California’s ban of high-capacity magazines. But the Supreme Court also vacated and remanded that case for reconsideration in light of Bruen.
If the Supremes take up one of these cases, we know for absolute certain how one of them would vote. In a 2011 dissent declaring that the government may not ban semiautomatic rifles, Brett Kavanaugh said the weapons are not “dangerous and unusual” but rather “in common use” throughout the United States. But he is obviously not the only justice on board with that. The question is how many. Given the majority’s ever-more-rightward stance on the Second Amendment over the past 15 years, it seems almost inevitable that state assault weapon bans will be zapped, and along with them, any chance of a national ban.
Some related things to read:
The Second Amendment is a failed experiment, and it’s time for reasonable people to admit that fact (Mark Sumner)
AR-15 manufacturers marketed the guns as tools for ‘good’ mass murder. That’s the whole appeal (Hunter)
We spent 7 months examining the AR-15’s role in America. Here’s what we learned (Washington Post staff)
A Southern town embraces its AR-15 factory (Ashley Parker and Josh Dawsey)
Let’s Stop Pretending Clarence Thomas Can Read the Framers’ Minds (Heidi Li Feldman and Dahlia Lithwick)
Turmoil in courts on gun laws in wake of justices’ ruling (Alanna Durkin Richer and Lindsay Whitehurst)
