Here's How the Supreme Court Can Overturn 'Assault Weapon' and Magazine Bans
And why it should.
Beginning with California in 1989, several states and the District of Columbia, all of which have Democrat-majority governments, have banned “assault weapons,” “assault firearms,” or “assault pistols.”1
For the most part, the bans define those otherwise ambiguous terms to mean semi-automatic firearms, if they use detachable ammunition magazines (regardless of the number of rounds the magazines hold), and have two or more—or, in some states, one or more—features listed in the bans. In the case of a rifle, the features are generally a pistol grip, an adjustable-length or folding stock, a flash suppressor, and a mounting lug for a bayonet.
As explained in endnote 2, most of these characteristics and features have been common for more than a century, each functions independently of the others, and easily more than 100 million firearms that Americans own, that the bans don’t define as “assault weapons,” have one or more of them.
The bans apply to new acquisitions of such firearms by private individuals and exempt firearms owned before the bans took effect, but in some cases require that banned guns be registered.
Congress imposed a “two-feature” ban, limited to 10 years, in 1994, and allowed it to expire in 2004. That ban prohibited the private possession of an “assault weapon” manufactured while the ban was in effect, without requiring registration of grandfathered guns. Democrats have demanded a new, more restrictive, “one-feature” ban, but no new ban has come to pass.
As with the expired federal ban, the vast majority of firearms affected by the states’ bans are rifles. Among the rifles, the most common are semi-automatic-only versions of “select-fire” rifles that are used by the military. “Select-fire” is the term for firearms that can be fired semi-automatically or automatically, by adjusting the position of a lever called a “selector.”
For example, the most common firearm affected by the bans, the AR-15, is the semi-automatic-only version of the select-fire M16 rifle, the firearm most commonly issued to members of the active-duty and reserve military, including the National Guard, which is the organized component of the Militia of the United States under federal law (10 USC 246). By most estimates, private citizens in the United States own 20 million or so AR-15s and the number rises by a couple million every year, because most states don’t have bans (and never have) and the rifles are popular.
The gun bans include separate bans on detachable ammunition magazines that hold more than, in most cases, 10 rounds. Also, several states that don’t ban “assault weapons” ban magazines that hold more than a certain number of rounds, in most cases 10.3 By most estimates, Americans own several hundred million such magazines.
Magazines that hold more than 10 rounds are used primarily in AR-15s and rifles like them, and (mostly) in handguns the bans don’t consider “assault weapons,” but which are instead the much more common type of semi-automatics the Supreme Court had in mind when, in District of Columbia v. Heller (2008), it struck down the District’s handgun ban, because it applied to “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” and when, in New York State Rifle and Pistol Assn. v. Bruen (2022), the court struck down New York’s inordinate restrictions on carrying handguns for protection away from home.4
Some of the states’ gun and magazine bans have been challenged in court. If the Supreme Court hears one or more of the challenges and adheres to court precedent—or if it instead rules according to what the Framers of the Bill of Rights intended with the Second Amendment—it will strike down the bans by a vote of 6-3, there apparently being no chance that Justices Elena Kagan, Sonia Sotomayor, and Ketanji Jackson-Brown will support anything that vindicates the right to keep and bear arms for any purpose, let alone the one for which the amendment was adopted.
Supreme Court precedent: U.S. v. Miller (1939)
The odd details of Miller are told in The Peculiar Story of United States v. Miller and “Miller’s Double Crossing” by law professor Brian L. Frye.
Long story short, two defendants, Miller and Layton, were charged with transporting in interstate commerce (i.e., transporting across state lines) a short-barreled shotgun without having complied with the registration and prohibitively-high tax requirements of the National Firearms Act of 1934 (NFA) that apply to such firearms, a “machinegun” (the NFA’s term for any automatic firearm), and some others.
In the U.S. District Court for the Western District of Arkansas, the defendants claimed those requirements violate the Second Amendment. The district judge agreed, knowing the government would appeal to the Supreme Court, which he assumed would reverse his decision, validating the NFA.
By the time the Supreme Court heard the case, Miller had been murdered and Layton had disappeared, so their lawyer didn’t appear before the court.
Defending the NFA, Solicitor General Robert H. Jackson claimed that the right to keep and bear arms:
. . . is not one which may utilized for private purposes, but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.
He added:
The Second Amendment does not confer upon the people the right to keep and bear arms; it is one of the provisions of the Constitution which, recognizing the prior existence of a certain right, declares that it shall not be infringed by Congress. Thus the right to keep and bear arms is not a right granted by the Constitution and therefore is not dependent upon that instrument for its source. United States v. Cruikshank . . . .
That’s a fair summary of what Cruikshank (1876) said, but it means the opposite of what Jackson thought. In recognizing that the right to arms existed before the Constitution was adopted, Cruikshank necessarily recognized that the right is privately held. Here’s what Cruikshank said:
The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.
Not surprisingly, the court unanimously rejected Jackson’s claim that the right to arms does not belong to private individuals. If it had thought the Second Amendment applied only to persons serving in a militia, it would have overturned or remanded the lower court’s decision based upon the fact that Miller and Layton weren’t serving in a militia when they were arrested for having the shotgun. But it didn’t do that.5
Perhaps anticipating the court would not agree with his militia-centric claim, Jackson also claimed that even if the right to keep and bear arms isn’t limited to service in a militia:
[T]he term “arms” refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. . . . (It) does not conceivably relate to weapons of the type referred to in the National Firearms Act . . . . Sawed-off shotguns, sawed-off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private individuals. On the contrary they frequently constitute the arsenal of the ‘public enemy and the ‘gangster’ and are not weapons . . . recognized by the common opinion of good citizens as proper for defence.
Then, as now, most types of firearms were not used by the military or law enforcement personnel, nor restricted by the NFA. Jackson was silent about them, to avoid undermining his “military or public defense purposes” claim. Nevertheless, with that claim, he had more success. Because the Miller defendants’ lawyer didn’t appear before the court to present evidence on his clients’ behalf, the court said:
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
There is nothing in the text or legislative history of the Second Amendment to support any such limitation. So, to support its theory, Miller cited the decision of the Tennessee Supreme Court in Aymette v. The State (1840), something of which current Supreme Court Justice Amy Coney Barrett might have disapproved.6
Mr. Aymette had been charged with violating a state law that prohibited the concealed carrying of a “bowie knife, or Arkansas tooth-pick” (a large dagger). Referring to the Tennessee constitution’s right to arms provision, the court said:
[T]he arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.
What today’s Supreme Court can make of Miller
The portion of Miller quoted above posited that the right to arms includes militia-related arms, one category of which consists of “ordinary military” arms, meaning those commonly issued to military personnel, and another category of which consists of other arms the use of which “could contribute to the common defense.”
Miller’s citation of Aymette suggests that, contrary to what Jackson argued, it (again, unanimously) considered the latter category to include all arms other than those that are useful “only in the hands of the robber and the assassin,” which in Aymette meant a knife with a very large blade, if carried concealed. (Carried openly, such a knife wasn’t prohibited.)
“Assault weapons” aren’t “ordinary military equipment”7 and they aren’t Arkansas Toothpicks. Instead, they are among the enormous category of firearms about which Jackson was silent, and they have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” because their use “could contribute to the common defense.” That is particularly true of those that are rifles, with >10-round magazines and other features named in the states’ bans (pistol grip etc.), and among the rifles it’s particularly true of AR-15s.
Here’s why
Article I, Section 8, Clause 15 of the Constitution authorizes Congress “To provide for calling forth the Militia to execute the Laws of the Union and suppress Insurrections.”
In the founding era, some thought everyone was in the Militia. For example, Section 13 of George Mason’s Virginia Declaration of Rights, the model for the U.S. Constitution’s Bill of Rights recognized “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state.” In perhaps his most famous statement on the subject, Mason said, “I ask, Sir, what is the militia? It is the whole people, except for a few public officials.”
However, beginning with the second Militia Act of 1792, the Militia was defined to include able-bodied males ages 18-45, and since the Militia Act of 1903, “The Militia of the United States” has had two components. Today, 10 USC 246 defines the “organized” component as the National Guard and the “unorganized” component as all other able-bodied males ages 17-44.
The standard rifle of the National Guard is the M16. The AR-15, except that it can’t fire automatically, is identical to the M16 and uses the same magazines, ammunition, and bayonet. Therefore, members of the unorganized militia who have AR-15s, if called into service by Congress, could be easily integrated with the National Guard, in terms of training and the supply component of logistics.
This isn’t to exclude other rifles affected by the bans. Most of them function in essentially the same way as AR-15s, many use the same ammunition, and some even use the same magazines. Nor is it to exclude handguns and shotguns affected by the bans. Many of them function like, and use the same ammunition as, handguns and shotguns used by the National Guard.
Nor is it to exclude other firearms. Almost all types of firearms can relate to the efficiency of the militia if used to develop marksmanship and general firearm-handling skills.8 And in a pinch, almost any firearm can be used to contribute to the common defense to some extent. As examples, in World War II, a small number of Polish citizens used revolvers to hold off the German Army in Warsaw, and the Allies air-dropped inexpensive ($2.10 in 1942) single-shot “Liberator” pistols to the French Resistance.
Nor is it to exclude Americans who aren’t in the militia. The Second Amendment guarantees the right of “the people,” or as George Mason put it, “the whole people,” to keep and bear arms.
Supreme Court precedent: District of Columbia v. Heller (2008)
In addition to its discussion of arms that relate to the militia, Miller also observed that, historically, members of the militia, if called to service, “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” For example, the Second Militia Act of 1792 provided:
That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . .
In other words, the type of weapon and accoutrements issued to soldiers.
Heller gave no weight to Miller’s endorsement of the right to “ordinary military” arms or other arms the use of which “could contribute to the common defense.” It instead seized upon Miller’s “common use” verbiage.
The reason for that requires some explanation.
Heller was about two things—whether the right to arms belongs to Americans generally or, as claimed by the District, belongs to them only while serving in a militia, and, if the former, whether the right includes handguns, therefore handguns can’t be banned.
Heller reached the Supreme Court on appeal by the District from the U.S. Court of Appeals for the District of Columbia Circuit, which said “Once it is determined—as we have done—that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.”
In his amicus brief to the court, Solicitor General Paul Clement complained that the appellate court’s statement that “arms” can’t be banned, along with its observation that modern handguns are the “lineal descendants” of founding era handguns, could mean that M16s—lineal descendants of founding era muskets—would be arms within the scope of the right the Second Amendment protects.
During oral arguments before the court, Clement said:
[G]uns that are specifically designed to evade metal detectors that are prohibited by federal law are not ‘arms’ within the meaning of the Second Amendment,” but “to make the same argument about machine guns would be a much more difficult argument, to say the least, given that they (M16s) are the standard-issue weapon for today’s armed forces and the state-organized militia” (meaning the National Guard).
A bit later, Clement reiterated his concern about how the appeals court’s opinion might be read. Justice Antonin Scalia then jumped in, saying that the opinion:
. . . didn’t use the militia prologue to say it’s only the kind of weapons that would be useful in militia, and that are commonly held today. Is there any Federal exclusion of weapons that applies to weapons that are commonly held today? I don’t know what you’re worried about. Machine guns, what else?
Clement replied:
I think our principal concern (is) based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule with respect to machine guns . . . . I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that’s what the machine gun is.
Chief Justice John Roberts then pointed out, that machineguns” weren’t at issue in Heller, which should have put the matter to rest. (Later, in another context, Roberts said “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”9)
Yet, when all was said and done, Heller posited a single rationale purporting to justify restrictions on automatic firearms, while striking down the District’s handgun ban. It said:
Read in isolation, Miller’s phrase “part of the ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.
Of course, there’s nothing “startling” about it. “Read in isolation,” that is exactly what Miller’s “ordinary military equipment” phrase would mean. In 1939, “ordinary military equipment” included two standard-issue rifles defined as “machineguns” by the NFA: the M1918 Browning Automatic Rifle and the Thompson submachinegun. Today, as Clement pointed out, the most “ordinary military” firearm is the M16.
Heller continued:
We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” (Emphasis added.)
However, what comes immediately after Miller’s “ordinary military equipment” language isn’t its observation about militia members possessing arms “in common use.” Again, this is what Miller said, referring to a short-barreled shotgun:
[I]t is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. (Emphasis added.)
Miller’s observation about arms “in common use” came three paragraphs later.
Heller misrepresented Miller because Miller endorsed the right to “ordinary military equipment,” which includes firearms the NFA defines as “machineguns,” such as M16s, and there is nothing in the text or legislative history of the Second Amendment that suggests that it was intended to limit people to “common” arms. Indeed, while cannons weren’t commonly owned during the founding era, some people owned them, without special restriction.
Of course, the reason M16s and other automatic rifles aren’t “in common use” among the private citizenry today is that they have been heavily restricted, a point Justice Stephen Breyer recognized in his dissent in Heller. Justice Breyer observed:
According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.
In any event, “assault weapons” and >10-round magazines, in addition to being commonly owned, as noted above, are “in common use.” Rifles among them, with >10-round magazines, account for the vast majority of rifles used in defensively-oriented rifle training classes. Also, while there is scant, if any, marketing of other types of rifles for defense within the home, there is a large amount of marketing and discussion on internet forums and in online videos about AR-15s and the like for that purpose, leading to the safe conclusion that they account for the vast majority of rifles kept ready for defense within the home. Furthermore, AR-15s and the like appear to account for the majority of rifles that news reports indicate have been used to defend against home invasions.
Also, >10-round magazines account for the vast majority of magazines used in pistols kept for defense within the home, carried for protection away from home,10 used in self-defense situations within and away from the home, and used in defensively-oriented handgun training classes.11
Heller misrepresented one more thing. The English Statute of Northampton (1328) prohibited “dangerous and unusual weapons.” English courts didn’t interpret the statute to mean that any weapons or armor were, in and of themselves, “dangerous and unusual.” Rather they interpreted it to prohibit wielding weapons and wearing armor in a dangerous and unusual manner. As William Hawkins explained in his Treatise of the Pleas of the Crown (1716), citing Sir John Knight’s Case (1686), “No wearing of arms is within the meaning of the statute unless it be accompanied with such circumstances as are apt to terrify the people.”12
But, pretending the Statute of Northampton prohibited the mere possession of a specific type of weapon, Heller said:
Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
Having laid the “common use” groundwork, Heller then justified striking down the District’s handgun ban on that basis, saying that the ban:
. . . amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster.
Supreme Court precedent: McDonald v. Chicago (2010)
This one is simple. In McDonald, the court incorporated the Second Amendment against the states.
Supreme Court precedent: New York State Rifle and Pistol Assn. v. Bruen (2022)
This one is fairly simple too.
Bruen struck down New York’s restrictive handgun carry license law, saying:
[T]he standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. . . . (It) must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. . . . [W]e conclude that respondents (New York) have not met their burden to identify an American tradition justifying the State’s proper-cause requirement.
The court could take the same approach to dealing with “assault weapon” and magazine bans.
There is nothing in the text of the Second Amendment, its legislative history, or the history of the right to arms in this country that even remotely supports banning firearms on the basis of their firing mechanism (in 1791, matchlock vs. flintlock; today, semi-automatic vs. automatic, revolver, bolt-action, pump-action etc.), the manner in which they are loaded and reloaded (in 1791, from the muzzle of a barrel vs. today, from the breech), or whether ammunition is fed to the firearm’s chamber from a fixed magazine or one that is detachable, or on the basis of the shape of a grip, the design of a stock, or whether the firearms have a bayonet mount or flash suppressor.
Additionally, pistol grips and bayonet mounts have been around for centuries. Semi-automatic firearms and detachable magazines have been around since the late 1800s. The earliest firearm the bans consider an “assault weapon,” the M1 Carbine, was introduced in the 1940s, and the most common “assault weapon,” the AR-15, was introduced in 1964. However, the first “assault weapon” and magazine ban wasn’t imposed until 1989, most states have never such a ban, some that do imposed their bans only recently, and the federal ban, which lasted only 10 years, expired 21 years ago.
If the Supreme Court defers to itself
If the court wants to overturn “assault weapon” and magazine bans “the easy way,” it can cite the latest statistics on the number of such firearms and magazines that Americans own and use as described above, and use Heller’s mischaracterization of Miller as limiting the right to arms to those “in common use.”
Also, though Miller was wrong to the extent that it suggested that the right to arms is limited to militia-related arms, the Court can point to its endorsement of the right to arms the use of which “could contribute to the common defense.”
And, it can use Bruen to strike the bans because, as noted above, they are outliers in the tradition of firearm restrictions in this country.
If the Court instead defers to the Framers of the Bill of Rights
Supporters of “assault weapon” bans have often said that the Framers couldn’t have conceived of “assault weapons.” That’s not necessarily true, because, as law professor David Kopel (cited by the Supreme Court in several decisions) has written, “during the time of the American Revolution and ratification of our Constitution there were several weapons in use that could fire much faster than the standard muzzle-loading flintlock rifle of the time.”
Also, even the ban’s supporters’ claim were true, it would be irrelevant. In one of Heller’s better moments, it said:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. . . .
In any event, while human nature—particularly the desire of some to tyrannize others—hasn’t changed since Day One and isn’t going to change anytime soon, technology in weapons and armor has advanced and will continue to do so, probably at an accelerated pace. Therefore, now’s as good a time as any for the court to come to grips with the fact that the Second Amendment, like the rest of the Bill of Rights, is about preventing tyranny.
This is clearly articulated in The Federalist No. 29, by Alexander Hamilton, and No. 46, by James Madison.
Hamilton:
[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.
Madison:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
In the founding era, the right to keep and bear arms included the same (or better) small arms (firearms designed to be fired while held at the shoulder or in the hand, such as rifles, shotguns, and handguns) as those issued to military personnel.
Thus, because, as Heller said, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not . . . future judges think that scope too broad,” the right to arms includes, contrary to what Heller also said, standard-issue military arms today, what Heller referred to as “M16s and the like.”
And, if “M16s and the like” are within the scope of the right, surely the semi-automatic-only versions of those rifles, other firearms like them, and the ammunition magazines designed for them are as well.
Endnotes
1. California, Connecticut, Delaware, Hawaii (“assault pistols”), Illinois, Maryland, Massachusetts, New Jersey, New York, and Washington.
2. Semi-automatic firearms were introduced in the late 1800s. So were detachable magazines. Not all semi-automatic firearms use detachable magazines, and not all firearms that use detachable magazines are semi-automatic.
Also, not all semi-automatics, irrespective of whether their magazines are detachable or fixed, have pistol grips, adjustable-length or folding stocks, flash suppressors, and/or bayonet mounts, and not all firearms that have one or more of those features are semi-automatic.
Pistols have been around for several hundred years and all of them, by definition, have pistol grips, as do some rifles and shotguns that are not semi-automatic, regardless of whether their magazines are detachable or fixed. Adjustable-length stocks are also found on some rifles and shotguns that are not semi-automatic.
Bayonet mounts have been on muskets and rifles of various types for centuries. (At the first Battle of Manassas in 1861, when told that Union troops were advancing, Confederate Lt. Gen. “Stonewall” Jackson replied, “We’ll give them the bayonet!”)
During the federal “assault weapon” ban, an AR-15—a semi-automatic rifle that uses a detachable magazine—was an “assault weapon” if it had a pistol grip and a bayonet mount, but not if it had only a pistol grip.
Though each of these characteristics functions independently of the others, the bans posit that—somehow—the combination of them warrants their prohibition. Or, as Sen. Howard Metzenbaum (D-Ohio) said during floor debate on “assault weapon” legislation on Nov 9, 1993, it is more about their appearance. After thumbing through the 1988 edition of Gun Digest, he said the firearms “look quite ominous. We have pictures of them.”
3. Colorado, Oregon, Rhode Island, and Vermont.
4. Heller and Bruen weren’t limited to semi-automatic handguns. Thus, in both instances, the court also had in mind other types of handguns, the most common being revolvers.
5. Thus, when in District of Columbia v. Heller (2008) the court recognized that the Second Amendment protects an individual right unconnected to service in a militia, it didn’t, as gun restriction supporters claimed, invent the individual right out of thin air.
6. In her concurring opinion in Bruen, Justice Barrett cautioned against a “freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.”
7. New Jersey’s ban considers the M1 Carbine (used by the military in World War 2, the Korean War, and the Vietnam War) to be an “assault weapon” in any of its configurations. Some others do so only if it has a pistol grip, folding stock, and/or bayonet mount.
8. For more than a century, Congress has authorized the sale, to private citizens, of surplus bolt-action and semi-automatic military service rifles, Army-inventory .22-cal. marksmanship training rifles, and service pistols to private citizens, and supported citizens’ training through the National Board for the Promotion of Rifle Practice and what is today known as the Civilian Marksmanship Program.
9. Dobbs v. Jackson Women’s Health Organization (2021), Chief Justice Roberts’ concurring opinion, page 2.
10. Most states have “shall issue” laws making it easy for a person with a clean criminal record to obtain a carry permit or license, and about half the states allow carrying by anyone who is not prohibited from possessing a firearm.
11. For example, the standard magazine for the most common detachable-magazine semi-automatic pistol in America, the Glock 19, holds 15 rounds.
12. See Stephen P. Halbrook, The Right To Bear Arms: A Constitutional Right Of The People Or A Privilege Of The Ruling Class, Bombardier Books, 2021, pp. 46-47.
Copyright © Mark Overstreet 2025