Bans of so-called 'assault weapons' may not hold up to Supreme Court scrutiny

To be clear, it has always been the contention of this column that there is absolutely no way to reconcile the "shall not be infringed" language of the Second Amendment, with bans of the very arms best suited to maintaining the security of a free state. Whether or not the Supreme Court would see things the same way, though, has been an entirely different question. Ten years ago--and probably less--the idea of SCOTUS striking down such a law would have sounded like idle fantasy.

Now, though, there is a growing body of opinion--sometimes expressed by those not necessarily considered "pro-gun"--that such laws would be skating on thin ice, should a challenge to them ever reach the Supreme Court. UCLA Constitutional law professor Adam Winkler is one who can hardly be considered a fervent gun rights advocate--having written about what he called "the Tea Party's gun problem," and having described Firearms Freedom Act legislation as "insurrectionist." Even so, he has his doubts about a so-called "assault weapons" ban surviving a Supreme Court challenge. As he wrote for the Daily Beast:

Even if enacted, [Senator Dianne] Feinstein’s ["assault weapons" ban] proposal would be the most likely of all the major gun reforms being considered in Washington today to be overturned on Second Amendment grounds. The Supreme Court has held that the Second Amendment protects arms that are “in common use” for lawful purposes, like self-defense. There seems little doubt that assault weapons are in common use, given the millions of them in circulation.

The "common use" factor is important because in writing the majority opinion for the District of Columbia v. Heller decision, Justice Antonin Scalia listed several "presumptively lawful" infringements on that which shall not be infringed (and no--he didn't explain how that works). Those included bans of arms not "in common use at the time" (and sorry, Obama regime ex-"regulatory czar" Cass Sunstein--"at the time" does not mean "at the time the Second Amendment was drafted").

With so called "assault weapons," (like the AR-15) being overwhelmingly the most popular centerfire rifles in the country, for several years running, and with millions of them in private hands (a number that grows by the minute, as demand continues to outstrip manufacturers' ability to produce them), "regime change rifles" are most definitely "in common use."

In an interview with Kwame Holman on the PBS Newshour, Second Amendment scholar and George Mason University School of Law Professor Joyce Lee Malcolm made not only that point, but expanded on it to include so-called "high capacity" magazines, which number in the scores of millions in private hands--if not hundreds of millions (see sidebar video):

"I don't really think the idea that you can ban them or reduce the magazine will really pass constitutional muster," Malcolm said. "If your standard is common use, these are all in common use for lawful purposes."

Granted, and unsurprisingly, this line of thinking is not universally held by those teaching Constitutional law. Obama mentor Laurence Tribe, of Harvard, for example, claimed in his testimony last month to the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights that, despite being possessed in the millions, "assault weapons" are not in "common use":

Given that the Congressional Research Service recently found that, as of 2009, Americans own about 310 million guns, the NRA‘s estimate would translate into approximately 7 million assault weapons owned today [actually, rabidly anti-gun U.S. Senator Carl Levin (D-MI) cites an estimate of 18 million]. Although 7 million is hardly a negligible figure, it still corresponds to quite a small portion of the overall gun market–hardly enough to justify calling such weapons--"common" within the meaning of Heller.

Besides, not only is about 230 such firearms per every annual "gun death" (or 600 per "gun death," by Sen. Levin's estimate) not enough to qualify as "in common use," according to Tribe, but it wouldn't matter even if it were:

But for the purposes of constitutional analysis, debating how to characterize the significance of assault weapons‘ market presence would be a waste of time. To make a difference to Heller‘s threshold inquiry, which must take notice of the complete lack of any connection of assault-weapon features to self-defense as well as these features‘ dangerousness in both fact and appearance, the market presence of assault weapons would have to be overwhelmingly large (and even then, I doubt seriously the bottom line would change as a constitutional matter). And overwhelmingly large it assuredly is not.

Here, Tribe is arguing that the politically incorrect features of "assault weapons" have no relevance to self-defense. A pistol grip's ability to render a rifle more easily controllable does not improve its utility for self-defense, apparently. When attacked at night, protecting one's night vision, by using a flash suppressor, has no self-defense utility. When defending one's livelihood, and indeed one's very life, from hordes of brutal rioters, a quickly replaceable 30-round magazine is not at all useful, Professor Tribe would tell us.

For that matter, Tribe should probably explain why the Department of Homeland Security considers M-16 rifles/M-4 carbines (or similar fireams), with 30-round magazines and fully-automatic fire capability, to be "Personal Defense Weapons."

Much more fundamentally, of course, Tribe chooses to completely ignore the fact that self-defense against common criminals is not the central purpose of the Second Amendment. Defense of liberty, against a criminal government, is.

No one knows if the Supreme Court will ever take up the question of the Constitutionality of an "assault weapons" ban, or what the outcome will be, if that happens. Furthermore, if the Court does hear such a case, and sides with the forcible citizen disarmament lobby, the fight--the real fight, when the statists' "cold war" against gun ownership goes hot--will only then begin. By the way, Fordham University School of Law Professor Nicholas Johnson testified brilliantly about the unconstitutionality (at even the lowest level of scrutiny) of "assault weapons" bans at the Senate Judiciary Committee hearing, but did not really address the likelihood of the Supreme Court agreeing with his conclusions).

Still, when the chance remains to settle the issue without killing anyone, morality demands pursuing that chance.