How Stupid Must a Gun Law Be to Get Struck Down by the Courts?


New York Times legal reporter Adam Liptak argues that D.C. v. Heller, the 2008 decision in which the Supreme Court recognized that the Second Amendment protects an individual right to keep and bear arms, "appears perfectly consistent with many of the policy options being discussed after the shootings in Newtown, Conn." I'm not so sure about that, especially with reference to renewing the federal ban on "assault weapons," the most popular response so far.

As Liptak notes, the Court did suggest in Heller that the Second Amendment permits laws "prohibiting the carrying of 'dangerous and unusual weapons.'" But since the features that legally define an "assault weapon" have little or no functional significance in the context of violent crime, it is hard to argue that such firearms are any more "dangerous" than models that do not fall into this arbitrary category. When it comes to mass shootings or more common forms of gun crime, does it matter whether a gun has, say, a bayonet mount or a flash suppressor? Furthermore, the guns that Sen. Dianne Feinstein (D-Calif.) and President Obama want to ban are not exactly "unusual." As I note in my column today, AR-15-style rifles like the one used by Adam Lanza—which does not qualify as an "assault weapon" under Connecticut law or under the federal ban that expired in 2004 but could under Feinstein's bill if she broadens the definition—are among the most popular rifles in America, with something like 3.5 million sold since 1986. Very few of those guns are used to commit crimes, let alone mass shootings. And according to Heller, the Second Amendment clearly applies to guns "in common use for lawful purposes." 

Heller did not say what level of scrutiny should apply to restrictions on gun ownership. But with a piece of legislation as frivolous as an "assault weapon" ban, it really shouldn't matter. You might say that such laws leave people with plenty of choices for self-defense and other legal uses. But by the same token, "assault weapon" bans leave mass murderers and ordinary criminals with plenty of perfectly serviceable alternatives, which calls into question the basic premise of such legislation. Where are the benefits—even theoretical ones—to weigh against the burdens of enforcing these silly distinctions? The lack of logical support for an "assault weapon" ban certainly should mean it would fail strict scrutiny, the standard generally applied to content-based restrictions on speech, or intermediate scrutiny, the test used in equal protection cases that do not involve a "suspect class." It even should fail the "rational basis" test, if that standard meant what it sounds like.

Imagine that Congress banned the use of certain words, asserting that they were especially conducive to defamation, fraud, conspiracy, and incitement. Could it defend such an absurd edict by pointing to all the other words that people were still allowed to use, arguing that freedom of speech remained essentially intact? Not a chance. The courts would say you need a really good reason to restrict First Amendment rights, not just any excuse that pops into a legislator's head. Why shouldn't the same expectation apply to Second Amendment rights?