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Abstract
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Use and manipulation of the pejorative term "assault weapon" is a classic case of "an Alice-in-Wonderland world where words have no meaning." The Second Amendment provides that "the right of the people to keep and bear Arms, shall not be infringed." Arms, such as rifles, pistols, and shotguns, do not lose their constitutional protection because the legislature describes them with a derogatory term. Indeed, "no pronouncement of a legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act. . . ." [United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938).]
The term "assault weapon" generically means a weapon used in an assault. Military usage refers to certain fully automatic machine guns as "assault rifles." Military forces worldwide issue assault rifles to their troops, not semiautomatic rifles made for civilian use. One could just as well say that having a barrel on a rifle is "military-style," as it is found on every military rifle and is far more significant than the shape of a grip or stock. In short, "assault weapon" has become "a political term, developed by anti- gun publicists" to ban firearms "on the basis of undefined 'evil' appearance."
In 1994, Congress passed a law defining and restricting "semiautomatic assault weapons"--itself an oxymoron--to include a short list of named firearms and certain firearms with two specified generic characteristics. It did not restrict possession of such firearms that were lawfully possessed on its effective date. Magazines holding more than ten rounds were similarly restricted but grandfathered. After the law expired ten years later, Congress saw fit not to reenact it. Neither the federal law nor its expiration had any effect on the homicide rate, which had been falling since almost two years before the enactment of the law in September 1994 and has continued to remain low since the law expired in 2004. The Bureau of Justice Statistics has reported: "Firearm-related homicides declined 39%, from 18,253 in 1993 to 11,101 in 2011." Moreover, while the banned "assault weapons" are mostly rifles, they are used in disproportionately fewer crimes: "About 70% to 80% of firearm homicides and 90% of nonfatal firearm victimizations were committed with a handgun from 1993 to 2011."
In 2000, New York passed a law nearly identical to the federal law, defining "assault weapon" based on two generic features. But on January 15, 2013, after the bill was just introduced the day before, the Secure Ammunition and Firearms Enforcement (SAFE) Act was signed into law, declaring countless numbers of ordinary firearms to be "assault weapons" based on a single generic characteristic. Having been so relabeled, these firearms purportedly lost their Second Amendment protection and were banned, other than those registered by a deadline.18 Yet nothing changed other than how the word was used.... Constitutional rights may not be extinguished by such linguistic manipulation. The test for Second Amendment protection is not based on what a legislature may call various arms, but, as the Supreme Court held in District of Columbia v. Heller, on whether they are "in common use" and "typically possessed by law-abiding citizens for lawful purposes."
The following analyzes the basis of Heller's "common use" test. It then discusses the settled fact that the firearms and magazines that the SAFE Act bans are in common use by millions of law-abiding citizens for self-defense, sport, and hunting. Next, it puts the particular features that are banned under a microscope to ask what makes these features so "dangerous and unusual" that they must be prohibited. Following that, the analysis shifts to why the ban on standard magazines and on having more than seven rounds in a magazine violates the Second Amendment. Finally, given that the right to keep arms is fundamental, it discusses whether strict scrutiny or intermediate scrutiny applies. It concludes that the arguments that seek to justify the SAFE Act reflect a fundamental misunderstanding of the basic nature of the right to keep and bear arms and of the nature of the actual firearms and their features that are prohibited....
Language: en |