Showdown on the Second Amendment
Harris Calls for Ban on “Assault Weapons”
We recently discussed how President Joe Biden has not only repeated false statements about the history of the Second Amendment, but has failed to acknowledge the limits imposed by the Second Amendment in calling for a crackdown on “assault weapons.” He recently has not, however, called specifically for a ban, which would run into serious constitutional challenges. Now Vice President Kamala Harris has taken that step forward in demanding a ban on “assault weapons.” (Notably, this week, a Republican house member also came out in favor of a ban on “assault weapons.”)
Politicians often use the term “assault weapon” to refer to the AR-15 and similar models of firearms. These civilian models are not automatic weapons (which are illegal for sale for most citizens). As discussed earlier, the AR-15 is the most popular gun in America and the number is continuing to rise rapidly, with one AR-15 purchased in every five new firearms sales. These AR-15s clearly are not being purchased for armored deer. Many are purchased for personal and home protection; it also is popular for target shooting and hunting. Many gun owners like the AR-15 because it is modular; depending on the model, you can swap out barrels, bolts and high-capacity magazines, or add a variety of accessories. While it does more damage than a typical handgun, it is not the most powerful gun sold in terms of caliber; many guns have equal or greater calibre.
Nevertheless, Vice President Harris declared this a”weapon of war” that has “no place in civil society.” What followed would appear to push beyond where President Biden left the issue as a criticism as opposed to a call for an outright ban: “We are not sitting around waiting to figure out what the solution looks like. You know, we’re not looking for a vaccine. We know what works on this. Let’s have an assault weapons ban.”
I have previously written about the failure of politicians to acknowledge the limits posed by the Second Amendment and controlling case law. While there are good-faith objections to how the Second Amendment has been interpreted, the current case law makes such bans very difficult to defend. In 2008, the Supreme Court handed down a landmark ruling in District of Columbia v. Heller, recognizing the Second Amendment as encompassing an individual right to bear arms.
The effort to ban AR-15s often fails to clearly distinguish the weapons from other semi-automatic weapons in terms of calibre or rate of fire. There are also obvious practical problems. With an estimated 393 million guns in the United States and an estimated 72 million gun owners; three out of ten Americans say they have guns. Indeed, gun ownership rose during the pandemic. When former Texas congressman and U.S. Senate candidate Beto O’Rourke declared, “Hell yes, we are going to take your AR-15,” he was widely celebrated on the left. However, even seizing that one type of gun would require confiscation of as many as 15 million weapons.
Notably, O’Rourke previously walked back his declaration that he was coming for everyone’s AR-15s when he declared his candidacy for the Texas governorship. He recently switched back to his earlier position after the massacre and his controversial appearance at a press conference with local officials.
Efforts to ban this model already have failed in the courts on constitutional grounds, though litigation is continuing on that issue. Most recently, the United States Court of Appeals for the Ninth Circuit struck down a California ban on adults under 21 from purchasing semi-automatic weapons like the AR-15.
Politicians have often ignored such precedent in pushing legislation that is likely to fail in the courts. The result is that liberal cities like New York, Chicago, and Washington, D.C., have created precedent against gun control efforts.
With almost 400 million guns in the country, politicians do not want to admit that no legislative measure is likely to stop such massacres by loners like the Texas gunman. He likely could have killed the same number of victims with a semi-automatic handgun. Those are questions that will be asked by courts in any challenge to a ban pursued by the Biden Administration. However, there are things that we can do like address the lack of funding for mental illness treatments in this country. That will require politicians who are willing to work on the basis of the realities rather than the rhetoric surrounding this national crisis.
(TLB) published this article from Jonathan Turley with our appreciation for this perspective.
Header featured image (edited) credit: Harris/ (AP Photo/Susan Walsh)
Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.
After a stint at Tulane Law School, Professor Turley joined the George Washington faculty in 1990 and, in 1998, was given the prestigious Shapiro Chair for Public Interest Law, the youngest chaired professor in the school’s history. In addition to his extensive publications, Professor Turley has served as counsel in some of the most notable cases in the last two decades including the representation of whistleblowers, military personnel, judges, members of Congress, and a wide range of other clients.
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