'Assault Weapon' Bans Look More Legally Vulnerable Than Ever

A preliminary injunction in Illinois may signal the demise of a long-running public policy fraud.

Three days after Washington became the 10th state to enact an "assault weapon" ban, a federal judge temporarily blocked enforcement of a similar law in Illinois. That decision, which was published last Friday, may signal the demise of a long-running public policy fraud that falsely depicts an arbitrarily defined category of semi-automatic rifles as good for nothing but mass murder.

"Assault weapon" bans, which typically cover specific models along with features such as adjustable stocks, pistol grips, flash suppressors, and barrel shrouds, have always been logically dubious. And under the constitutional test that the Supreme Court recently established, they look more legally vulnerable than ever.

These laws never made much sense. With or without the features that states such as Washington and Illinois have deemed intolerable, a rifle fires the same ammunition at the same rate with the same muzzle velocity.

Even President Joe Biden, who wants Congress to revive the federal "assault weapon" ban that expired in 2004, has conceded that the law left would-be killers with plenty of alternatives that were "just as deadly." And contrary to the claim that the rifles targeted by this sort of legislation are the "weapon of choice" in mass shootings, handguns account for more than three-quarters of the firearms used in such crimes and an even larger share of the firearms used in gun homicides generally.

The Supreme Court's precedents suggest that "assault weapon" bans are unconstitutional as well as illogical. The Court has said the Second Amendment applies to firearms that are commonly used for lawful purposes, and last June it explicitly rejected the sort of "interest-balancing" test that lower courts had previously used to uphold "assault weapon" bans.

Instead of weighing a law's purported public safety benefits against the burdens it imposes, the justices said, courts should ask whether it is "consistent with this Nation's tradition of firearm regulation." In a federal lawsuit they filed immediately after Washington enacted its "assault weapon" ban last week, the Second Amendment Foundation (SAF) and the Firearms Policy Coalition (FPC) argue that the state cannot meet that test.

"The only historical tradition that can remove a firearm from the Second Amendment's protective scope," the complaint says, is "the tradition of banning dangerous and unusual weapons." But that category does not include "arms that are in common use" for legal purposes, "as the firearms Washington has banned unquestionably are."

The SAF and the FPC note that AR-15-style rifles covered by Washington's law "are among the most popular firearms in the nation, and they are owned by millions of Americans." They cite survey data indicating that "about 24.6 million Americans have owned AR-15 or similar modern semiautomatic rifles."

The SAF and the FPC made the same argument in Illinois, and U.S. District Judge Stephen P. McGlynn found it persuasive. In granting a preliminary injunction against that state's "assault weapon" ban, McGlynn concluded that the law was probably inconsistent with the right to keep and bear arms, adding that Illinois legislators seem to have ignored that likelihood and the Supreme Court decisions underlying it.

In the survey cited by the SAF and the FPC, two-thirds of the respondents who reported owning AR-15-style rifles said they used them for recreational target shooting, while half mentioned hunting and a third mentioned competitive shooting. Sixty-two percent said they used the rifles for home defense, and 35 percent cited defense outside the home.

Washington Gov. Jay Inslee, a Democrat, nevertheless insists these rifles "have no reason other than mass murder," because "their only purpose is to kill humans as rapidly as possible in large numbers." Illinois Senate President Don Harmon (D–Oak Park) likewise maintains that killing innocent people is the "only intent" of the rifles his state banned.

Ascribing intent to inanimate objects reflects the magical thinking of politicians who argue that certain guns are inherently evil. That position is plainly at odds with a reality that courts may no longer be able to ignore.

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