Professor Noah Feldman, in a recent article titled “What Would Founders Say About Assault Weapons?” published on Bloomberg, purported that the Supreme Court, if given the opportunity, would rule that the Second Amendment does not protect assault weapons. The U.S. Court of Appeals for the 4th Circuit recently released an opinion that will likely lead to acircuit split with the 2nd Circuit on the issue. The 4th Circuit’s decision requires the trial court to apply strict scrutiny to the issue of whether an assault weapons ban is constitutionally permitted.
Feldman, in his article, suggests that intermediate scrutiny on the issue is almost self-assured by asserting that although the AR-15 and other “assault weapons” are “common,” only those weapons that are useful for both militia use and self-defense are constitutionally protected by United States v. Miller and District of Columbia v. Heller. Without this test, Feldman contends that the Supreme Court would either have to allow citizens to possess rocket-propelled grenades (RPGs), vehicle-mounted machine guns, and armed drones, or it would have to limit the Second Amendment to weapons that were in existence when the Amendment was written—an unconvincing stance.
The Second Amendment has proven to be one of the most difficult Amendments in the Bill of Rights to interpret, likely because of strong political lobbying groups on both sides pushing their agenda. However, political bias aside, if a court wants to follow the logic of previous precedents, it will, in all likelihood, hold that “assault weapons” are just as protected by the Second Amendment as any other firearm not under the purview of the National Firearms Act of 1934.
First, there are legitimate and noteworthy differences between an “assault weapon” and an “assault rifle.” Although Feldman uses these terms interchangeably throughout his article, these two categories of firearms are vastly different. An “assault rifle” is a firearm used by the military and police departments which has the capability to fire in the modes of semi-automatic, burst, or automatic. An “assault weapon,” on the other hand, is a term devised by Senator Dianne Feinstein when she wrote the assault weapons ban portion of the Violent Crime Control and Law Enforcement Act of 1994. The Act defined “assault weapons” as “a semiautomatic rifle that has an ability to accept a detachable magazine and has at least” two other features that were listed, including a pistol grip or a bayonet lug. This latter definition was molded and manipulated after the assault weapons ban expired to include less of these features, depending on the state legislature. For instance, Maryland’s now defunct assault weapons ban only required one additional feature on a long gun to be considered an “assault weapon.” Under this law, anyone who attaches a flash suppressor (a legitimate device used to prevent blindness when the marksman fires the rifle) on an otherwise legal hunting rifle, is in possession of a banned “assault weapon.” In the end, an “assault weapon” is still operationally equivalent to any other non-conspicuous semi-automatic rifle that fires only once with each pull of the trigger. Just as a Lamborghini body on a Toyota Prius is still just a Prius, so too is an M16 body on a hunting rifle not covered under an assault weapons ban still just a rifle.
Although the military has begun to depart from promoting soldiers’ use of the burst and automatic features of their combat rifles, these firearms are not, despite their similar design, the same firearms that one would see at an American shooting range. Although an American citizen could own an “assault rifle,” such machine guns come with a price tag well into the tens of thousands of dollars and are subject to a plethora of regulations under the National Firearms Act of 1934. Additionally, converting the modern AR-15 to function as an automatic firearm requires a skilled gunsmith, expert drilling and filing, and the acquisition of parts that simply are not available on the civilian market without paying the hefty price tag and dealing with the same regulations. These parts include an automatic sear, disconnector, and bolt carrier. The point is: these are not the “exceptionally lethal weapons of war” that Judge Robert King claimed.
Feldman rightly highlights that the Court in United States v. Miller ruled that the Second Amendment fully protects those firearms that a citizen would bring with them should the militia be called into service. Additionally, the Court clarified that individual citizens comprise said militia. To qualify for protection, according to Miller, a firearm must bear some “reasonable relationship to the preservation or efficiency of a well regulated militia.” From this test, the Court ruled that short-barreled shotguns (shotguns with a barrel of less than 18”) were not subject to the full protections of the Amendment, and, as such, could be regulated by the National Firearms Act of 1934.
Next, Feldman points to District of Columbia v. Heller which ruled that there is an individual right to own firearms and that pistols are among the protected class of firearms which enjoy the full benefit of the Second Amendment. Heller additionally sets forth a test to determine if a firearm falls within the protected category. This evaluation simply requires that the firearm “must be in common use at the time.” Scalia did not use Feldman’s narrow understanding of the legitimate uses of firearms, instead ruling that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
Feldman nonetheless argues that the proper conception of whether a firearm should be protected is to determine if the firearm can be used for both self-defense and militia use. However, this is not what the case law says. Self-defense is not the only, although it is the strongest, right that the Second Amendment aims to protect. There are, as Scalia claimed, other lawful purposes. Additionally, Scalia very clearly divorced the notion of the firearm needing to be connected to possible militia use as was required by Miller. However, even if militia service were connected, it makes sense that “assault weapons” would be the preferred firearms to take if called into service. They are, despite Feldman’s assertion to the contrary, more tactically capable due to their smaller, more compact size, their larger magazine capacity, their ergonomics, capability to accept various attachments and scopes, and ability to reload quickly. The fact that these firearms are not often used in self-defense does not mean that they are not purchased with that intention in mind. Rather the 4th Circuit Court of Appeals points to the ruling in Fyok v. Sunnyvale stating that “the fact that few people will require a particular firearm to effectively defend themselves should be celebrated and not seen as a reason to except [that firearm] from Second Amendment protection.” Judge Manion in his dissent of Friedman v. Highland Park added that self-defense is meaningless “if it does not include the right to choose the most effective means of defending oneself.”
With all of this in mind, the only test for whether “assault weapons” are a protected class of firearms under the Second Amendment is if the firearm is in common use at the time. As Feldman acknowledged, these firearms meet that standard due to the number of these types of rifles and shotguns that are privately owned in the United States. As such, ownership of “assault weapons” should be afforded the full privileges of protection under the Second Amendment. This leads to the inevitable conclusion that because “assault weapons” are protected under the Second Amendment, any legislative enactment that seeks to restrict or ban the right to own these firearms must undergo strict scrutiny. However, as Scalia notes, his ruling in Heller does not grant carte blanche to gun owners to carry whatever weapon for whatever purpose. Regulations on when one can carry a firearm in public do not necessarily deprive one of their rights under the Amendment, and, as such, those legislative enactments may be subjected to intermediate scrutiny.
James A. D’Cruz is a 2L at Harvard Law School.