THE 2013 ONE-FACTOR TEST
Code:
‘‘(36) The term ‘semiautomatic assault weapon’ means any of the following, regardless of country of manufacture or caliber of ammunition accepted:
‘‘(A) A semiautomatic rifle that has the capacity to accept a detachable magazine and any 1 of the following:
‘‘(i) A pistol grip.
‘‘(ii) A forward grip.
‘‘(iii) A folding, telescoping, or detachable stock.
‘‘(iv) A grenade launcher or rocket launcher.
‘‘(v) A barrel shroud.
‘‘(vi) A threaded barrel.
‘‘(D) A semiautomatic pistol that has the capacity to accept a detachable magazine and any 1 of the following:
‘‘(i) A threaded barrel.
‘‘(ii) A second pistol grip.
‘‘(iii) A barrel shroud.
‘‘(iv) The capacity to accept a detachable magazine at some location outside of the pistol grip.
‘‘(v) A semiautomatic version of an automatic firearm.
‘‘(F) A semiautomatic shotgun that has any 1 of the following:
‘‘(i) A folding, telescoping, or detachable stock.
‘‘(ii) A pistol grip.
‘‘(iii) A fixed magazine with the capacity to accept more than 5 rounds.
‘‘(iv) The ability to accept a detachable magazine.
‘‘(v) A forward grip.
‘‘(vi) A grenade launcher or rocket launcher.
‘‘(G) Any shotgun with a revolving cylinder.
(scroll the quote box to see) There are some other provisions that I have omitted, you can see by the skipped letters (I only show (A) (D) (F) and (G)). To me, the question is whether these definitions create a quasi-absolute ban on all semiautomatic weapons. The more that it does, the more it is like the ban in
Heller.
THE 2008 HELLER DECISION
Part I explains the underlying facts/circumstances. Part II goes through a vey lengthy analysis, establishing that the right to bear arms is an “individual” right to bear arms for the purposes of self defense. Part III is very short and explains the right is not unlimited and may be curtailed where appropriate. Part IV explains that DC’s a) “absolute” ban on all handguns and b) ban on having any kind of operational firearm in the home was a violation of the right to bear arms for purposes of individual self-defense.
The struck-down DC statute prohibited anyone from owning a pistol, unless it was grandfathered-in by
registering the pistol (not merely
possessing like in the 2013 ban) prior to 1975 (which is when it was enacted..yea it was struck down when it was over 30 years old) or if possessed by LEO. The statute also required that all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” This obviously prevented people from using any firearm whatsoever for self-defense.
Heller told us several things: 1) the Second Amendment protects the “individual” right to bear arms for the purposes of self defense, not merely for the purpose of creating a standing state militia, 2) the phrase “bear arms” mean to carry on one’s person whether in one’s home or otherwise, 3) a person may be disqualified from the exercise of his second am rights due to felony conviction or legal incompetency (mental illness, youth, etc) or the fact of being in a “sensitive” area such as a school or prison—i.e., the right “is not unlimited,” 3) the second am “codified a pre-existing right” (it came from case law dating back to the 1600’s..but really even before that), 4) the Second Amendment extends, as a prima facie matter, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding (this just means that simply bc a weapon did not exist at the time of ratification does not indicate the second am does not protect it, though there may be other reasons the second am does not extend to it…such as a machine gun or explosives), 5) the historical
Miller decision (from 1939 regarding the NFA) continues to provide that the sorts of weapons protected are those “in common use at the time,” and 6) there is a historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” There are additional things said by
Heller, but I am leaving it at these for now.
The more narrow holding of
Heller was that the District of Columbia’s statute was an “absolute” prohibition on “handguns” (all pistols and revolvers), and that such prohibition was unconstitutional impingement of the right to bear arms for individual self defense bc pistols are overwhelmingly “in common use” for purposes of self defense.
Astonishingly, what Heller did not do was provide a level a constitutional scrutiny that is to be applied when analyzing the government’s abrogation/impingement of the right to bear arms. Normally, when the legislature (or executive branch, for that matter) impinges a right protected by the constitution, the enacted statutory provision must withstand one of three levels of constitutional scrutiny:
strict scrutiny
,
intermediate scrutiny
, or
rational basis scrutiny
. Normally, when the right is a “fundamental” right, strict scrutiny applies—but not every fundamental right triggers strict scrutiny. For example, the Fifth said a federal law prohibiting FFL dealers from selling handguns to ppl under 21 (but the law did not prevent young ppl from possessing handguns) is reviewed under intermediate scrutiny bc there has been a longstanding tradition of age-based safety restrictions governing firearms.
Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 206-207 (5th Cir. 2012) (“Under this federal regulatory scheme, 18-to-20-year-olds may possess and use handguns for self-defense, hunting, or any other lawful purpose; they may acquire handguns from responsible parents or guardians; and they may possess, use, and purchase long-guns. Accordingly, the scheme is sufficiently bounded to avoid strict scrutiny.”).
So,
Heller struck down the 30+ year-old DC statute without identifying any level of scrutiny to be applied. That is extremely odd, and no one is exactly sure why...or at least I am not sure. It probably has something to do with the fact that this was an all-out ban, and the level of scrutiny to be applied should be dependent on the particular circumstances of the impingement. But I still do not understand why they would not just say fundamental as applied to law-abiding citizen when the arms at issue are “in common use” and therefore strict scrutiny in this narrow context. I am thinking that perhaps not all 5 of the majority would sign on if that was put in the final decision. I’m just speculating, but if that is true that means one of the 5 was on the fence...not good.
Lastly,
Heller only addressed “handguns.” However, Scalia did mention rifles. After discussing that the amendment protected weapons “in common use at the time,” the majority opinion said, in dicta:
- “It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause [of the Second Amendment]. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
District of Columbia v. Heller, 554 U.S. 570, 627-28 (2008). The prefatory clause is: “A well regulated militia being necessary to the security of a free state,” the operative clause is: “the right of the people to keep and bear arms shall not be infringed.”
To me, this indicates a strong preference in favor of holding that the second amendment protects the right to bear semiautomatic rifles and pistols—weapons that may fall under the category of “M-16 rifles and the like.” However, the answer to question is the answer we are looking for and can only guess at for now. Also, even if the second am protects the right to bear those arms, Congress may impinge that right any day of the week if its impingement meets strict scrutiny….and possibly if it meets merely intermediate scrutiny. Not sure.
MY PERSONAL CONCLUSIONS, THAT COULD EASILY BE WRONG FOR ANY REASON OR NO REASON AT ALL
I do not think the weapons ban will pass, and if it does pass, I do not believe it will be upheld. But I need more time to think about this. Right now, I am thinking that the one-factor test bans essentially all semiautomatic weapons. That is a critical deciding factor in this case. If so, the 2013 ban would be sufficiently similar to the absolute ban in
Heller. In other words, whatever scrutiny was applied in
Heller, must dictate that the instant ban is equally unconstitutional bc both bans completely abrogate the right to bear an entire class of weapons that is in common use prior to the enactment of the ban. But if the other side can distinguish and say that the 2013 ban doesn’t ban a big large “Group X” of semiautomatic weapons, then this argument is torpedoed. It is actually invigorating to see the statute list so many rifles that are exempted...bc they are almost all bolt action that would have never fit the definition anyway. It goes to show they know they are banning a huge amount of guns. The un-pretty fact is that the weapons that are good at killing humans are the weapons in common use for lawful self-defense. The fact of being semiautomatic is simply a fact of being effective and necessary for self-defense. No amount of legislation or clever statutory language can maneuver around this. The only way to prevent horrific massacres is to address the root causes of those. Among other things, this includes mental health issues—which presents its own slew of problematic sub-issues.
So where does this leave us?
I believe that we have to re-frame the issue as, not a question of banning “assault” weapons, but a question of banning “semiautomatic” weapons. Reshape the conversation. I have no idea how to do this. That is the job of those puny lobbyist/marketing f’kers…present company excepted if any such be present. : )
