Is the End of the Assault Rifle Nigh? - Pacific Standard

Is the End of the Assault Rifle Nigh?

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A new appeals court ruling signals clearer definitions in how we apply the Second Amendment.

By Jared Keller

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An assault rifle magazine with bullets sits on a table. (Photo: Justin Sullivan/Getty Images)

In a 10–4 ruling on Tuesday, the Fourth Circuit Court of Appeals in Richmond, Virginia, upheld the State of Maryland’s ban on several types of assault rifle and high-capacity magazines, asserting that the class of firearms prohibited under the state law weren’t protected under the Second Amendment. The ruling isn’t historic or unprecedented — it’s the fifth time a federal appeals court has affirmed a state’s assault weapons ban in recent years — but, as The Trace points out, it’s the first to exclude weapons like the AR-15, the favored rifle of mass shooters that is, per the Trace, “virtually indistinguishable from weapons of war.”

As Judge Robert King wrote in the court’s majority opinion:

We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are unquestionably most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach…. Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

The case is also something of a crossroads for Second Amendment jurisprudence, according to Eric Ruben, a fellow at the Brennan Center for Justice. Prior to 2008’s District of Columbia v. Heller, which deemed handguns constitutionally protected in federal enclaves like Washington, D.C., and 2010’s McDonald v. Chicago, which extended that logic to states, the Supreme Court had never made clear the scope of the Second Amendment. In Heller, the court said for the first time ever that gun control laws could be challenged in a Second Amendment basis.

“Bill Clinton signed a [10-year] national assault weapon ban in 1994, so there had been legislative attempts to restrict assault weapons for decades now,” Ruben says. “But in the past, the challenges to these bans had nothing to do with the Second Amendment — and, since Heller, most of those challenges have failed.”

Since the sunset of Clinton’s federal ban in 2004, several legislatures have adopted state-level assault weapons bans, many in the aftermath of the 2012 Sandy Hook massacre that left 20 elementary school students dead. And since the landmark unshackling of the Second Amendment argument in 2008’s Heller, several courts have rejected the assertion that so-called “weapons of war” like the M-16 and AR-15 are protected by the Second Amendment. The Fourth Circuit is unprecedented in the strength of its denunciation, asserting that assault weapons “aren’t included in the ‘arms’ referenced in the Second Amendment” and therefore subject to state regulation.

The National Rifle Association doesn’t necessarily buy this logic. “It is absurd to hold that the most popular rifle in America is not a protected ‘arm’ under the Second Amendment,” NRA spokeswoman Jennifer Baker told NBC News, arguing that the majority opinion “clearly ignores the Supreme Court’s guidance from District of Columbia v. Heller that the Second Amendment protects arms that are ‘in common use at the time for lawful purposes like self-defense.’”

Ironically, the court does rely heavily on Heller — especially in its prohibition of “dangerous and unusual weapons” that aren’t explicitly the M-16, which, under the Fourth Circuit’s interpretation, extends to all manner of assault rifles, including the AR-15. Self-defense isn’t a consideration here, regardless of whether a “dangerous and unusual weapon” technically constitutes “arms” or not.

The Fourth Circuit is unprecedented in the strength of its denunciation.

“The next effect of these military combat features,” the majority opinion wrote, “is a capability for lethality — more wounds, more serious, in more victims — far beyond that of other firearms in general, including other semiautomatic guns.” “Weapons of war,” as the Fourth Circuit described them, are not weapons of self-defense; those firearms built solely to kill swiftly and indiscriminately do not fall within the purview of the Second Amendment.

This, of course, leads to a broader question about what constitutes a “weapon of war.” Is it a matter of design or history? This may be the subject of the next constitutional challenge over assault weapons and the Second Amendment, a tension already on display during Fourth Circuit arguments, as The Trace points out:

The two sides argued over the development history, technical features, and place in American life of these assault weapons. The plaintiffs disputed the defense’s assertion that certain features, like a coiling shroud that protect a user’s hands from the heat created by shooting multiple rounds, are unique to military-style guns. In one filing, they sounded nearly contemptuous of the defense’s fixation on these design details: “Plaintiffs dispute this ‘fact’ because Defendants’ statements inaccurately imply that this is a feature unique to ‘assault weapons.’ In fact, most firearms have either an extended stock or a barrel shroud to prevent the shooter’s hand from being burned, which can occur when even a few shots are fired.”

In contrast, the defendants pointed to the AR-15 and similar weapons’ clear origins and continued marketing as guns developed for the military. The government’s lawyers pointed to gun companies’ own marketing materials. As they wrote in one filing, “Colt relies heavily on the AR-15’s military origins, features, and specifications when marketing to civilians, boasting that its rifles are ‘based on the same military standards and specifications as the United States issue Colt M16 rifle and M4 carbine.’”

So what happens now? Ruben believes it’s unlikely the Supreme Court will take up an appeal, especially while hobbled with a vacancy. After all, the Court has repeatedly refused to weigh in on the constitutionality of weapons bans since Heller in 2008. “The Court will have the last word, but it has yet to rule on the constitutionality of an assault rifle ban in any other case,” Ruben says. “The Court has repeatedly refused opportunities to disrupt these cases and these holdings, and that was even before Justice [Antonin] Scalia died.”

The only circumstances in which the Court might grant a writ of certiorari were to resolve a circuit split, where multiple appeals courts offer vastly different interpretations of the law — and so far, every circuit court has held assault weapons bans constitutional. “There’s different reasoning, sure, but generally that doesn’t rise to the level of what would be required for a Court cert grant,” Ruben says. “Even if they did hear the case, a 4–4 tie would result in the lower court’s opinion standing.”

But despite the letdown of a Supreme Court conflict deferred, the lower courts are overwhelmingly in favor of assault weapons bans, regardless of ideological composition. Ruben points out that the majority opinions in the Fourth, Seventh, and D.C. Circuit Court opinions on assault weapons bans were all authored by relatively conservative judges; J. Harvie Wilkinson III, Frank Easterbrook, and Doug Ginsburg were all Ronald Reagan appointees to the federal bench.

“I think that many judicial conservatives don’t think it’s appropriate for the court to meddle in cases of constitutional ambiguity,” Ruben says, explaining why conservative judges might uphold a state ban. “In these situations, they prefer to leave the issue to the elected branches like the legislature.”

It’s hard to overstate the significance of the Fourth Circuit ruling as a legal obstacle to the NRA. The decision shows “there’s a real difference between the ideology of the NRA and mainstream conservative legal thought,” says Adam Winkler, a law professor at the University of California–Los Angeles. “For the latter, there’s always been a right to bear arms, but gun control laws are generally defensible as long as the underlying right isn’t completely destroyed. Many conservative judges believe that having an arsenal of guns in your home already means a restriction on assault rifles isn’t totally a burden on your rights.”

The Fourth Circuit decision won’t stop future efforts by gun control advocates to roll back restrictions on their favorite high-capacity firearms. In Massachusetts, the NRA is leading a grassroots effort to do away with state attorney general Maura Healey’s crackdown on “copycat” assault weapons — the same firearms likely included under the Fourth Circuit’s ‘weapons of war’ logic — and severely restrict the State House’s ability to regulate sales in the future.

“There’s a real difference between the ideology of the NRA and mainstream conservative legal thought.”

But Winkler points out that the NRA and gun advocates likely won’t put too much political energy into assault weapons bans in the foreseeable future. With Donald Trump in the White House and Republicans in control of Congress, a return to Clinton’s 1994 federal ban seems unlikely, as does a state-by-state battle. Only about seven states and D.C. have enacted bans, and circuit court decisions have upheld more than half of them. As of right now, the NRA is just biding its time until the Supreme Court finally decides to pick up an assault weapons case.

“The NRA will challenge assault weapons bans in Court, and gun enthusiasts will raise the exact same arguments over and over again until they win an argument at the Court,” Winkler says. “After all, a win at the Court will overturn every circuit court decision. They’re just waiting to appeal a case to a Court that’s a little more conservative and a little more gun-friendly.”

Still, the the Fourth Circuit decision comes with a hint of irony: Despite the sacrosanct status of the Second Amendment for the likes of the NRA, the jurisprudential common sense of the courts has triumphed over the alternate interpretation—the latter of which has resulted in a country awash in the tools of mass shootings.

“It’s safe to say that courts view assault weapons bans different than handguns, and there’s broad consensus among judges that these bans are constitutional,” Ruben says. “The Supreme Court will have the last say, but the Second Amendment argument has been a loser in federal courts thus far. The gun rights movement has been good at repealing restrictions through elected officials, but it’s a losing argument in the federal courts.”

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