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America's Rifle
The AR-15 is protected by the Second Amendment.
Thanks to Eugene for inviting me to post about some of the developments in the wake of the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen. Bruen held that New York's limitation of the issuance of permits to carry a handgun to those who officials decide have a special need violates the Second Amendment, which protects from infringement "the right of the people to … bear arms." The government may not limit that right to a privileged class.
One of the hot-button issues that is being relitigated after Bruen is whether banning semiautomatic rifles such as the AR-15 violates the Second Amendment. I argue that it does in my new book America's Rifle: The Case for the AR-15. It covers text and precedent, English and colonial history, the Founding, and how the constitutional right to arms kept pace with the development of firearms. The expired federal ban of 1994 was a true aberration from a Congress that has almost never actually banned a type of firearm.
When Bruen was decided, six states restricted permits to carry handguns—California, Hawaii, Maryland, Massachusetts, New Jersey, and New York. Five of those states (excluding Hawaii) plus Connecticut also prohibited possession of rifles they derogatorily call "assault weapons." A week after Bruen was handed down, the governor of Delaware signed a law adding that state to the list.
In most of the 20th century, the antigun movement focused on banning handguns. Rifles and shotguns were said to be good, pistols and revolvers bad. The Colt AR-15 Sporter rifle hit the civilian market in 1964, the same year that Colt made its first deliveries of the M-16 to the Air Force. The AR-15 is semiautomatic, requiring a separate function of the trigger for each shot, while the M-16 is automatic, meaning it fires continuously as long as the trigger is pulled back. Despite that basic difference, they looked similar on the outside, causing the Violence Policy Center see the potential for confusion in the public. The idea of labeling the AR-15 and like rifles "assault weapons" and banning them was born.
In 1989, California became the first state to ban "assault weapons," which it defined to include a list of makes and models such as the AR-15. We challenged that law in Fresno Rifle & Pistol Club v. Van de Kamp (1992), but the Ninth Circuit held that the Second Amendment doesn't apply to the states. The Supreme Court has since ruled that it does, in McDonald v. Chicago (2010).
In District of Columbia v. Heller (2008), the Supreme Court held that, as a textual matter, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms." Turning to history, the Supreme Court determined that historical limitations on carrying "dangerous and unusual weapons" provided a bound on the scope of the right. Thus, while dangerous and unusual weapons can be banned, "arms in common use at the time for lawful purposes like self-defense" cannot.
The common-use test was plain, so when the District banned "assault weapons" (aka semiauto rifles), we mounted a challenge . The D.C. Circuit, in Heller v. D.C. (2011) ("Heller II"), conceded that the banned rifles "are indeed in 'common use,'" but balanced the right away under intermediate scrutiny. Then-Judge Brett Kavanaugh dissented on the basis that semiautomatic rifles have been in lawful use for over a century and pass Heller's common-use test.
With intermediate scrutiny to the rescue, other circuits copied Heller II and upheld the bans in several states. Those decisions create a distorted image, since most states don't have bans, and so other circuits have not opined on the issue.
And now comes Bruen, collapsing the house of cards. Conduct within the "plain text" of the Second Amendment is presumptively protected, and a restriction may be valid only if the government shows it to be "consistent with this Nation's historical tradition." Text-history is in, means-ends scrutiny is out. And the history (or analogues thereof) that matters is 1791 and the initial decades that followed, as long as consistent with the text and early history.
Under the Heller test, as elaborated upon by Bruen, AR-15s and similar semiautomatic firearms may not be prohibited. Indeed, Heller and Bruen together establish the test for any ban on firearms, and that test makes clear that all firearms in common use for lawful purposes are protected and cannot be banned.
AR-15s and other similar firearms come within the "plain text," because they are bearable arms. Heller and Bruen both establish that the Second Amendment extends presumptively to all bearable arms. Second, banning such firearms is not consistent with this Nation's history. Indeed, the Supreme Court established that such a ban is inconsistent with this Nation's history nearly thirty years ago by holding that AR-15 rifles "traditionally have been widely accepted as lawful possessions," Staples v. U.S. (1994).
What is more, the historical boundaries of protected arms have already been established in Heller and Bruen. Those cases make clear that the only arms that are not protected are "dangerous and unusual weapons," which necessarily entails that citizens have a right to possess and use arms that are "in common use today." For this reason, historical analogues have no place here; the Supreme Court has done the historical analysis and set forth the "common use" test.
Can the government possibly show that AR-15 rifles are dangerous and unusual? Not at all, as they are among the most popular firearms in the Nation. Recent data indicates that Americans own at least 24 million AR-15s and similar rifles, that they constitute 20% of all firearms sold in recent years, and that they are used for lawful purposes such as self-defense, training, and hunting. It follows that Americans have a Second Amendment right to own and use them.
And readers do not simply need to take my word for it. This is supported by the analyses of three Supreme Court justices—Justice Thomas (the author of Bruen) in his dissent from denial of cert in Friedman v. Highland Park (2015), Justice Kavanaugh in his dissent in Heller II, and Justice Alito in his concurrence in Caetano v. Massachusetts (2016).
When the Supreme Court decided Bruen, it issued a GVR (grant cert., vacate, and remand) to the Fourth Circuit's decision in Bianchi v. Frosh, for further consideration in light of Bruen. That's a polite way of saying get it right next time. That case summarily affirmed that circuit's prior decision in Kolbe v. Hogan (4th Cir. 2017) (en banc), which upheld Maryland's "assault weapon" ban. As the first post-Bruen circuit to reconsider such a ban, the oral argument on December 6 is worth listening to. Some takeaways from the argument:
Kolbe rejected the common-use test and held that AR-15s are not protected because they are "most useful in military service." (Never mind that no military in the world issues mere semiautomatics.) That was the wrong test.
Maryland also rewrites the "common use" test to say instead that the only arms protected are those in "common use for self-defense." That is not the test. Heller tells us that arms commonly used for lawful purposes—not just self-defense—are protected under the Second Amendment. Maryland does not concede that the AR-15 is in common use and seeks a remand for further "discovery." Seriously? Bruen was decided as a matter of law based on the pleadings and rejected any need for a remand for further factual development.
Maryland argues that AR-15s are not in common use for self-defense because shots are rarely fired. But Heller required no showing of how often handguns are actually fired in self-defense to prove common use, which means possession for that purpose.
As a fallback, Maryland wants to show that at least some of the rifles in the list are not in common use and that the law is severable. Plaintiffs respond that they are all of the same general type and that no further facts need to be developed.
Heller was fiercely resisted by the lower courts. Keep your fingers crossed for what the Fourth Circuit ultimately rules.
Tomorrow, I will address how Bruen's "plain text" concept is being treated by the lower courts.
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None of this stuff much matters.
What matters is whether the AR-15 has five votes on the SC.
I think Andrew Jackson said something about that
President Jackson (supposedly) said: “John Marshall has made his decision; now let him enforce it!”
You have a point:
I think Mr. Halbrook’s analysis is solid. But, if the AR-15 “loses” in the courts, the authorities will have one hell of a time enforcing the ban…
As they say in Texas: “Come and take it!”
Some future supreme court isn’t likely to criminalize AR-15s, nor direct their confiscation.
Rather, they will allow some state to do so.
We’ll then see how that will turn out.
The point is, if a D president and senate get to seat three justices in a row, the AR-15 will likely become criminalized in at least some states. All of that analysis just isn’t persuasive even in the margin, let alone compelling broadly.
If a D President and Senate get to seat three justices in a row, (Assuming they’re not just replacing their current three justices.) the new Court isn’t just going to permit states to ban guns. They’ll permit the federal government to do so, too. And it’s pretty hard to believe that scenario happens without the Democrats ever having a majority in both chambers at the same time as they hold the Presidency, so the federal government WOULD pass that ban. The Democratic party is still pretty hardline anti-gun.
It’s still, despite occasional comforting noises, Democratic orthodoxy that the 2nd amendment protects no individual right worth having. A “right” to carry a gun when the government orders you to, and that’s about it. If they interpreted the 1st amendment in the same way, it would protect the ‘right’ to give compulsory testimony in court and answer when somebody in the government asks questions.
The Democratic party is still pretty hardline anti-gun.
Unless you listen to what they say and opinion polls, which are decidedly mixed.
But the persecution complex must continue, so why not wishcast into the future so you can forever enjoy the upcoming oppression some on here seem to crave.
The Democratic Party is a single institutional entity. By definition, you can’t conduct an opinion poll on one entity. You can, however, assess what a political entity says by looking at its party platform. And the Democratic Party platform is decidedly “hardline anti-gun” and has been for quite some time.
I’m not talking about Democratic voters, who are more mixed. I’m talking about the institutional party. Which has never made it’s peace with the Heller decision.
As you can see with Biden, raving about banning semi-auto guns.
If a D President and Senate get to seat three justices in a row, (Assuming they’re not just replacing their current three justices.) the new Court isn’t just going to permit states to ban guns. They’ll permit the federal government to do so, too.
And such a scenario isn’t affected by Halbrooks’ thesis in the slightest.
Ideology trumps any constitutional authority.
The second amendment is a protection of our personal rights as well as our political rights. The gun grabbers will try any approach to nip away at those rights. They do so now by trying to pit hunters, self-defense proponents, and those who continue to recognize the full meaning of the second amendment against one another.
US v Miller(1939) is still good law in terms of the type of arms the second amendment covers. That court cited Aymette vs TN which teaches that “the 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.” That is the actual meaning of “in common use” as presented by the Miller court.
The NFA drew the line at full auto vs semi-automatic, and since then tens of millions of ordinary citizens have owned semi-auto versions of military arms without jumping through hoops. So that even if one embraces the present day watered down meaning of “in common use” it cannot be said that ownership of the AR15 and other semi-auto rifles is outside the protection of the second amendment.
Or you could read Miller differently. NFA was upheld because no evidence was shown as to the suitability of a short barreled shotgun to be useful was a militia weapon (the court was unfamiliar with the concept of a “trench gun”.)
If Kolby held the black rifle is “most useful in military service,” then they undermine their own argument (under Miller) as AR15 arms would be constitutionally protected militia weapons.
Bruen is also being fiercely resisted now. See: Montgomery County MD bill 21-22, which imposes a 100 yd “sensitive place” restriction that makes carry permits useless, because the list of sensitive places is absurdly broad.
New York is doing the same thing with its Concealed Carry “Improvement” Act. It’s improvement the same way Joe Bidet’s “Inflation Reduction” Act will reduce inflation. This will continue until the court orders preclearance of any new gun laws.
Yeah, I am working on a “gay marriage improvement act” to submit to my state legislature now that I know how the game is supposed to be played.
You didn’t learn how to play the game from all the absurd “right-to-life” legislation passed over the years to “fiercely resist” Roe?
Professor Halbrook, I’d like you to write about the bad faith emanating from the 2nd Circuit regarding the injunctions that they have stayed, without any justification.
The AR-15 is perfect for preservice marksmanship training of citizens who may volunteer or be drafted for military service. If any modern gun is protected by US v Miller 307 U.S. 174 (1939) (“Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation”) it is the AR-15. For that matter, anyone eligible for military service should be familiar with the service rifles of potential allies and adversaries as well.
Carl_N_Brown — Excellent points. And on that basis citizens should be allowed ownership of even fully-automatic weapons. They should be stored under guard in militia armories. They should be used for practice under military discipline as prescribed by congress and state law, as stipulated in the Constitution.
To bear arms does not come naturally. It involves much more than having a gun ready to hand. It is an organized practice, involving coordinated action under direction. That is what it means to be well-regulated.
An excellent model for civilian ownership and management of military-style weapons is already practiced and proven to work in Switzerland. Some version of Swiss law is what should be enacted here.
Gun advocates who insist on ownership of military-style weapons free of all constraint should not be listened to by anyone. What they demand is not the right the Constitution guarantees.
“Some version of Swiss law is what should be enacted here.”
Instead the Second Amendment was enacted here.
Did you forget the part where there’s a right of *the people* to *keep* and bear arms? You can’t mandate that the government keep them locked in an armory.
Davy C and ragebot — You are mistaken. Article 1 of the Constitution prescribes what I described. Nothing in the 2A is to the contrary. I insist current Swiss practice would be constitutional in the U.S. Perhaps there would need to be some marginal adjustments. To adopt the Swiss system, or something nearly like it, as our own, would more faithfully implement U.S. constitutional intent, and enable wiser gun policy here.
On the rare occasions he’s right, he’s right: You could under the militia clause implement a Swiss style militia system, indeed, that was the intent.
The 2nd amendment doesn’t conflict with that, it complements the militia clause, by guaranteeing an armed citizenry from which a militia can easily be raised, and preventing governments hostile to the militia system from trying to make militias impossible by disarming the people.
It’s perfectly consistent with Congress passing a law requiring everybody to own a specified firearm. They just can’t add, “And only that firearm.” or “Only if we tell you to.”
SL,
“And on that basis citizens should be allowed ownership of even fully-automatic weapons. ”
That is pure sophistry.
Oh, come on, read the Miller decision, not the lower court cases that played a game of “telephone” with it. The Court ruled against Miller because they weren’t presented evidence sawn off shotguns have military utility. (Because it was a trial in abstensia, duh!)
Are you going to argue that fully automatic weapons don’t have military uses?
So long as justices along the line of Thomas and Alito can muster a majority at the Court, gun absolutists are likely to be content.
Most Americans favor enlargement of the Court, however — especially the Americans who are winning the culture war — and it seems reasonable to expect that the Alito-Thomas positions are unlikely to prevail over time.
I hope the right to possess a reasonable firearm for self-defense in the home is not overrun by the predictable mainstream backlash against gun absolutism.
“Heller tells us that arms commonly used for lawful purposes—not just self-defense—are protected under the Second Amendment.”
You keep using that word reasonable. It appears in the Fourth Amendment but not the Second.
Go choke on a d*ck.
This is among the rare circumstances in which you benefit from being a conservative. Otherwise, the record indicates Prof. Volokh would be inclined to censor or ban you for that comment.
That — viewpoint-driven, hypocritical censorship — is within the Volokh Conspiracy’s rights. Prof. Volokh’s playground, Prof. Volokh’s rules.
Says the King of Choking on Dicks!
The Volokh Conspiracy gets the fans it wants and deserves.
I doubt any of this blog’s content is persuading the mainstream with respect to anything other than the wisdom of continuing the decades-long trajectory of the American culture war.
Carry on, clingers. So far as your betters permit, that is.
Why do you hate the gays so much?
Is an AR-15 unreasonable, in your view?
I do not known enough about the particulars to develop a reliable conclusion.
Exactly. So you’re just spewing based on whatever you read in the Washington Post. Stick to topics on which you’re informed, like the virtues of gay anal intercourse.
“I do not Known”” ???? OK, Leroy, or Rufus, or D’jango, we know you’re not the real “Reverend” Sandusky!!!!!! What have you done with (or to??) him!?!??!?!?!?
Arthur, You agree that a gun for home protection is ‘Ok’. In your view, could a homeowner patrol their property perimeter with a gun. Does the ‘home’ extend to the edge of their property line?
Could? I do all the time.
Probably, so long as the firearm being carried is a reasonable weapon.
If the gun nuts continue to provoke the mainstream with their gun absolutism, however, I sense there is a reasonable prospect that the backlash is going to be severe. There just aren’t going to be enough gun-fondling, backwater Republicans left in America to do anything about the predictable snapbacks (guns, abortion, special exemptions for religious claimants, etc.).
Arthur…interesting answer. So carrying my AR-15 slung over my back, patrolling the perimeter of my upper middle class home, is Ok. But my handy howitzer — no go, no can do. What’s Ok for me to carry when I want to patrol my property line and keep the varmints (dogs walking their owners) off my pristine lawn?
So where is the reasonable line drawn?
Like Senescent Joe’s “Home” Pretty sure it’s patrolled by guys with Assault Rifles (real ones) (just a matter of time before he fires a Shotgun out the window, in DC who would notice??)
NPC Alert
Could someone translate from incel to English?
“the service rifles of potential allies and adversaries”
In common use by those forces who may be adversaries of a general militia.
OK, so Mexican cartels and Canadian moose?
Set aside the AR-15 topic for a second.
The real question in my mind is whether NFA restrictions, such as SBRs, pass Bruen**. Its hard to see how restrictions on Short Barrel Rifles, shotguns, AOW (foregrips) or suppressors pass the Bruen test. I can see machine guns passing Bruen, but I cannot see the Hughes amendment (which prohibits registration of MGs) passing Bruen.
**For example: How is an AR15 with a 3″ shorter barrel suddenly more dangerous and unusual. How is a CZ scorpion Evo with an 8″ barrel fine, the 16″ carbine fine, but the 8″ with a stock not fine.
Have a good look at police department-issued so-called patrol rifles.
They are, ahem, common. And police officers are civilians.
I am aware of that.
How — exactly — are those police weapons legal?
They are buying them with public funds, and — if nothing else — you’d think that a competing vendor would complain about it. And then all the defense attorneys defending all the perps — you’d think that at least one would try to smear the police on behalf of a client.
And then there is the whole BLM hate-the-cops — and no one has made an issue about this?
One of the silliest laws is restrictions on suppressors (which are incorrectly called silencers). In very restrictive places like the EU and OZ suppressors are common, cheap (compared to the US), and viewed as necessary to protect the hearing of a shooter.
Even sillier is it is easy to take some gaffers tape, a two liter soda bottle filled with cotton balls and make a very effective one use suppressor which is much more likely to be used by criminals since crimes are a one use deal.
Look, if they can’t stop you from owning a gun, at least they can see to it you go deaf if you use it. It’s what you deserve, after all.
I’d like to see Bruen applied to the question of my ability to visit my ailing in-laws in WNY. I cross x State boundaries and in (x-minus-2) of them, my State-issued carry permit is accepted or unnecessary. But not New York.
Since it’s self-defense, the Rev should not object.
If you are not in your home, you should not expect most modern, reasoning, educated Americans to accept the argument that you are entitled to possess that weapon, especially not in violation of state law.
Given that you consider “modern” and “educated” to mean “onboard with barebacking other dudes while HIV+,” I’m not sure I grant any credence to your definitions.
Hey Jerry, this isn’t a Defensive practice at Penn State, you don’t get to say what the rules are.
Why does a white, male, Federalist Society-Republican blog attract these fans?
Because no one else is interested in the stale, ugly thinking the Volokh Conspiracy is trying to peddle.
Be prepared to experience even more American progress, crafted against the wishes and works of conservatives, clingers.
The bigger question is why it attracts you and your repetitive nonsense comments.
It’s a marketplace of ideas.
And mocking the downscale, bigoted, obsolete content at a white, male, disaffected right-wing blog can be fun as well as worthwhile.
How did you get all those All Amurican Linebackers to Penn State Jerry??
Or even more amazing, how did you get them to stay, and keep quiet for so long??
Well, states have to recognize same-sex marriage licenses, why not un-constitutional “carry permits”?
I also love how the NFA has made machine guns extremely uncommon but the fact that they are uncommon is somehow held against them.
Frankly, they are very common. Militaries and police departments, and Three-Letter Agencies.
At a minimum, use by civilian law enforcement should count towards determining common/uncommon.
That’s a good policy rule too. If we don’t “need” certain guns because they’re “For the battlefield only,” then neither do the police.
Gun control laws of any kind ought to never make exemptions for civilian law enforcement.
Here is a good reason why:https://www.masslive.com/news/2011/01/trial_of_former_pelham_police.html
This is the same police chief who quietly agreed to pay to replace a door frame in the town office. Seems he was giving a gun safety training seminar with a weapon that actually *was* loaded and discharged into said door frame…
When I got the advertising postcard in the mail for what wound up being the fatal event, I quietly mentioned it to an officer I knew, who said that (a) it *was* a legal event but (b) best not attended — the only reason he could have the fully automatic weapons was because he was the police chief. (Pelham is a really small town, most of it was buried under a lake created to supply water to Boston, and it has a 2-man police department.)
Anyway, what happened was that he had a 16-year-old range safety officer who was intimidated by a MD from CT who wanted his 8 year old son to fire an Uzi while he videotaped it. Child lost control of the weapon and wound up shooting himself in the face — he should never have been allowed to fire it! And a 16-year-old range safety officer — assistant, yes and there are some damn responsible 16-year-olds, but that’s not old enough to stand up to an overbearing adult who wants to do something stupid.
Actually, no. The M16-A-2 is no longer fully automatic — it only has single shot and 3-shot burst — and while the latter *technically* is full automatic, it’s not what Congress intended to define a “machine gun” as being.
And the military went back to selectively full auto because, apparently, it didn’t provide any real benefits, but introduced complexity, that resulted in maintenance issues. Designing a gun that shoots just N=1 rounds per trigger activation is simple, as is shooting N>=1 rounds, but N=3 rounds is more complex.
The original, circa Vietnam M-16 had all three options — single, burst, or full — although I know that there were issues with the weapon.
Full auto was removed because the Brass thought troops wasted too much ammo — Eugene Stoner was very much opposed to removing it.
I was thinking the same thing. Before the NFA made them illegal to own without the taxes and government paperwork, both the Thompson submachine gun and the Browning Automatic Rifle were quite common.
Not really sure how common fully automatic weapons ever were. Military training designates fully automatic weapons as useful in fire suppression, something very few need to do outside of war.
From a 2016 FOIA request to the BATF, there were
– Pre 86 (transferables): 175,977
– Sales Samples (pre May keepers): 17,020
– Restricted 922(o) : 297,667
for a total of just under a half million. For comparison, the US population in 2015 was a bit over 300 million.
How common does something have to be before you call it “common”? Again for comparison, the machine gun ownership rate is roughly the same as the rate of lever-action rifle ownership. If you call machine guns uncommon, does that mean everyone should also have to give up their Winchesters?
By the way, there are also somewhere between a quarter and a half million bump stocks that were defined into existence as machine guns in 2018.
Both the Thompson and the BAR came too late to be used in WW-I and the Thompson (to a lesser extent the more expensive BAR) essentially were sold to the public as war surplus — as the “war to end all wars” was over.
They sold a lot more than just that — Pyrotol was given away *for free* to farmers looking for a cheap incendiary explosive. See; https://en.wikipedia.org/wiki/Pyrotol And then there was Francis Bannerman who dealt more with Civil War stuff, but military weapons were routinely sold to the public. JFK was shot with a surplus (WW-II) Italian rifle that he bought via mail order — which was then made illegal.
You could buy surplus DUKKs — and there are tourist tours still using these 70 year old vehicles. You could buy almost any surplus aircraft up into the 1960s (e.g. Phantom II) and even more modern Russian stuff.
I still regret that I didn’t buy one of those Finnish Lahtis they were advertising surplus in the backs of magazines when I was a kid. I was making enough collecting scrap metal in the local industrial park to have afforded one.
SCOTUS did not specify that only mgs in the hands of the citizenry were to be considered for ‘in common use’. Read Heller and Miller.
If the Court had treated the 14th amendment the same, segregation would have been declared presumptively constitutional in the Brown case.
The Supreme Court refused 2nd amendment cases for nearly 70 years, then grandfathered in almost all of the resulting violations.
I guess 250,000 legally privately owned machine guns is “Uncommon” in a nation approaching 400 million peoples (some of them actually born here), of course the numbers been frozen at that level since 1986 when Ronaldus Maximus signed the “Firearm Owner’s Protection act of 1986″(you know what protects Firearm Owners? Firearms) Dem’s threw the “Machinegun Ban” in at the last minute as a Poison Pill, Ronaldus double crossed them by signing anyway.
In his defense it did get rid of the record keeping/ID requirement for ammo purchases, starting the whole “Surplus Ammo” business (remember buying a Norinco Semi Auto AK with 1,000 rounds 7.62×39 in 1987 for $400), and allowed importation of foreign surplus semi-autos (like Norincos)
Frank “Knows a little about this”
“Ronaldus double crossed them by signing anyway.”
Like Trump with the bump stock ban, he did it because the NRA had told him it was OK so far as they were concerned. That’s something that ticks off the membership: Every once in a while the NRA picks some marginal group of gun owners, and throws them under the bus.
The problem with the ‘in common use’ test, is that, while it’s fine so far as existing arms are concerned, it allows government to freeze civilian firearms development in place.
Suppose this test had been put in place in 1963, a year before the AR15 was released? It could have been banned! No arm can START OUT ‘in common use’.
Play with the date: Imposed in one year, you could ban all semi-auto arms. Imposed in another, metallic cartridges.
This is no way to treat a constitutional right, embedding it in amber, to become more archaic with each passing year. We need a more principled rule, such as you have with the 1st amendment.
“the ‘in common use’ test”
In common use by whom?
The Miller Court had an answer: The military. It’s a right to be armed comparably to the government’s own soldiers.
Bellmore — I suggest if what you say is to be enacted, a condition must be that those armed comparably to the government’s own soldiers will not be permitted gun-related practices denied to the government’s own soldiers.
Like what, praytell?
So the government has no power to ban an individual from owning a Javelin? Or is that where you draw the line for “dangerous”?
Either way, regarding the article, I’m always leery of getting a historical overview from a dedicated advocate for one side.
“So the government has no power to ban an individual from owning a Javelin? Or is that where you draw the line for “dangerous”?”
I agree that ‘anything an infantryman might carry’ is a silly argument. The founders might or might not have thought that should be the case, but it’s not viable today. Javelins wouldn’t be the problem, because of their cost, but neither the population at large or the Supremes are going to be OK with gangbangers using $50 surplus RPGs for drivebys[1], or crack houses setting up claymore mines.
[1]see, e.g. the Scandinavian ‘biker wars’ from a few years ago.
“The founders might or might not have thought that should be the case, but it’s not viable today.”
This is what they call “presentism”. Americans could still own any weapon a soldier might carry as recently as a half a century ago. Yeah, including RPGs. And it wasn’t causing problems.
You are correct sir!
Don’t think that’s the answer you’re looking for.
Always a hoot when someone responds affirmatively to a Reductio ad Absurdum.
Reality check: if it’s not “dangerous”, it’s not a weapon (arm).
Just because they can be banned, doesn’t mean they will be. For example a new rifle is invented and banned in some blue states, but legal in the rest. Several million are sold over the next few years. Voila, “common use”.
Yeah, that’s great as long as the federal government doesn’t get into the game. Should the Supreme court overturn the current precedents upholding the NFA and it’s successor laws, fine.
AR-15: preferred by more than 9 out of 10 domestic terrorists.
2A Fetishists: Our reading of the constitution unequivocally states that your right to life (or that of your family including children) is subordinate to any mentally deranged citizens’ right to own whatever weapon they want without any restriction whatever. No imposition of responsibility for owning a lethal weapon (AR-15 or other) will be tolerated because it is a right and not a privilege. Clearly, the founding fathers and framers fully realized that giving psychotic/suicidal individuals the power to assassinate dozens of people at will is absolutely essential for freedom.
Did I miss anything? Oh I did miss something. It is that anyone who believes that deserves to be taken seriously.
Enjoy being a raving loser.
Open wider, Mr. Bellmore. Your betters will ensure that you will be swallowing even more progress arranged by the liberal-libertarian mainstream — including a severe repudiation of gun nuttery.
Unless, that is, clingers figure a way to reverse the tide of the culture war — by making backwardness, bigotry, and superstition more popular in America. That’s the aim of the Volokh Conspiracy, and so far it seems a spectacular failure. Which explains the disaffectedness and desperation around here.
“Open Wider”?? Jeez Jerry, 11+ years of prison don’t seem to have changed you a bit, I guess that’s what all of those years of “Opening Wider” will do to you.
The legitimate educational institutions whose franchises the Volokh Conspiracy misappropriates deserve far better than this. On the bright side, I expect mainstream schools to exercise much better judgment with respect to faculty hiring decisions after observing evidence such as this white, male, right-wing blog.
The “right to life” and the right to keep and bear arms are not in conflict. Actually, they support and strengthen each other.
M L — Give that some thought. You know that is a contested question, with no ready answer sufficiently reliable to put the question aside. But if the question could be answered reliably, and it came out as you say, then the entire gun controversy would move abruptly and likely permanently in the direction gun advocates prefer. So why do gun advocates fight tooth and nail to prevent any attempt to use government to organize research to answer that question?
Have you not read Heller? A primary premise is the right to self-defense. And those of us who believe in a vigorous 2A have seen incremental near-elimination of that right in other countries. Criminals will not comply with stricter laws, leaving honest citizens more at risk. Obviously, this is a debatable point, but the Supreme Court has eschewed the means-ends test in favor of enforcing the contract the People made in the Constitution. Thank God! A nine person oligarchy is no more compatible to me than a one person dictatorship.
So you’re here to lie and spew bullshit?
Cool. Thanks for making it obvious and saving me the moral dilemma of whether you should be muted or not.
Bai.
re: “Did I miss anything?”
Yeah, you missed pretty much everything.
AR-15 preferred by 9 out of 10 domestic terrorists?
1960s it was the .22 Short RG10 revolver.
1980s it was the ceramic Glock that could sneak past metal detectors and hijack airplanes by its lonesome self.
Statistically you are more likely to be murdered by an assailant using “personal weapons” (in other words, by an unarmed assailant) than be murdered by an assailant with an AR-15s.
Right now, millions of citizens own about twenty million of AR-15s thanks in large part to the media hoopla.
Umm, on 9-11 they used 757’s and 767’s, still see plenty of those around.
You forgot the fully automatic box cutters.
“any mentally deranged citizen”
What you missed is any sense or knowledge of what mental illness means.
Your stereotyping is no better than run of the mill racism
One thing in particular that Mr. Halbrook wrote caught my attention, namely, his claim that the AR-15 is used for hunting. Seriously? Hunting what? What kind of a sicko would take an AR-15 into the woods or fields to shoot game?
It’s a recommended gun for hunting feral hogs.
With the right ammunition, it’s a very effective deer rifle. With any ammunition, it’s a very effective “varmint” gun – that is, one where the goal is to get rid of crop-destroying pests rather than hunting for food.
Stop confusing him with facts.
I noticed that the State of Maine recently allowed the .223 round to be used to hunt deer. I’m not sure about that…
Rossami — What a mild and moderate response. Gun pedants everywhere cringe for you. A true gun pedant points out that as a deer rifle even the 100+ year-old 30-30 Winchester is superior. As is practically every lever-action, bolt-action, or single-shot center-fire rifle and caliber known to the market.
Also? A gun pedant would not fail to note that in many states the .223 caliber is not even permitted for hunting deer-sized or larger game.
And of course the whole notion of a, “varmint,” gun has always been marketing hype, catering to errant shooters who think target practice will be more fun if they kill something too. Disagree? Show me anyone who works systematically to rid his farm or range land of, “crop-destroying pests,” by shooting them. Can you imagine any more expensive (in time and ammunition), or less reliable way to control ground squirrels, or wood chucks, or rabbits, or for god’s sake rats and mice?
A smart rancher who doesn’t want, “crop destroying pests,” makes it a point to post his land against fools who tote AR-style rifles to kill coyotes. Coyotes not only protect crops, but rangeland grasses too.
Some people like to kill gratuitously. That is the market the term, “varmint rifle,” was invented to serve. Shoot the wrong varmints and you just make your pest problems worse.
Bored boys used to shoot rats. No one complained.
You are demonstrating that you are marginally less ignorant of folks with rural values than MoreCurious’s original comment but still mostly ignorant.
You are obviously speaking from ignorance.
They’re good protection against wild coyotes.
Are there domesticated coyotes?
MoreCurious: can you elaborate on why you think a Remington 7400 or a …
…Browning DBM is suitable for hunting, while…
…a Ruger SFAR isn’t? They seem functionally identical to me.
Like Bugs Bunny said, for Hunting “Elmers”
and for the effin gazillionth, bazillionth, to infinity cubed, squared,
the 2d Amendment’s not about hunting!!!!!!!!!!!!!
it’s about the right to bear arms for any reason whatsoever,
and shall (my lawyer friends say “Shall” means something) not be infringed.
And if Kunta Kinte had a gun back when Simon R. Legreed showed up in Gambia, gave the Slave traders a 30 caliber lobotomy, maybe they wouldn’t have ended up as Slaves. (OK, I know they didn’t have M1 Garands in the 18th Century, whatever the equivalent was)
Frank
That would be 30.06 for a Garand and 30 cal for the carbine.
Details matter.
Yes, I know the Garand is a 30:06 (had a “Tanker” model in 7.62 NATO, traded it for a microphone, I miss it (my shoulder doesn’t)
but I’m pretty sure the receiver says “US Rifle Caliber .30 M1” at least my CMP model
I’m in Buffalo this week, so can’t pull it out (no, I don’t make a habit of walking through Airports with a Garand)
Frank
You are correct that the receiver would be marked as you indicated. Caliber designations can be confusing but they wre both 30 cal. The .06 designation referred to the year it was approved by the military. That said the cartridges were obviously different with the 30.06 being about 3 times as powerful as the carbine round.
Umm, yeah, sort of apparent when you look at them…
A good bit of my 4,000 + M1 Carbine rounds (not that many in the big scheme of things, an M2 Carbine will eat them up at the toon of 750rpm cyclic rate) were from the “Lake City Army Ammunition” Plant, for years I just assumed it was Lake City Florida, and for years when passing by on I-10 I’d cheer for the town arming Amurica, turns out it’s Lake City MISSOURI, duh,
Frank “Here we are, Lynchburg Virginia, where’s the damn Jack Daniels distillery??????”
The Garand is also the “M1 Garand” https://en.wikipedia.org/wiki/M1_Garand
also the “Greatest battle implement developed by man” according to that decidedly Un-Woke General George S. Patton
Well, Patton never saw the Sig Virtus. If he did, he’d change his mind.
Well yeah, he didn’t have a Time Machine
Thanks for setting me straight. I thought AR-15s could only be used in schools, churches, nightclubs, stores, and concerts. And to help elnurmamedrafiev defend himself against an assault by a pack of “wild coyotes.” Good hunting, everyone. And stay safe.
The eighties called and want their silly arguments back.
Any rifle capable of killing a deer is also capable of killing a human.
And: the 2nd amendment is not about “hunting” its about self defense.
Then tell that to Mr. Halbrook, who wrote the book that we’re supposedly discussing.
Halbroook is well aware of that. It seems like you arent.
What text in 2A leads you to the conclusion that it is about self defense and not hunting?
The Army based the M-16 on the principle that it would take three .223 rounds to kill an enemy soldier — where as one .30-06 would do it.
What’s wrong with hunting with an AR type firearm? They are highly modular, and AR-15s have been used for most everything between .17 and .50 BMG (and anything bigger is mostly illegal anyway). You can have one lower receiver (legally the firearm) and attach any number of upper receivers to that lower, in a myriad of calibers. Admittedly, the mag well doesn’t allow for feeding longer rounds than the standard .223/5.56 used by the military. In those cases you can go with another feed mechanism, or move up to the AR-15’s older, bigger brother, the AR-10.
Imagine then, having a rifle that can be used effectively for squirrels and bears, and everything in between. All you have to do is pop two pins, and swap in a different upper receiver and barrel. Legally, the same firearm.
So, the argument that you can’t hunt with an Ar-15/AR-10 (and I challenge anyone who hasn’t handled them to easily tell them apart – they look almost identical), is ludicrous. The argument usually comes down to that the 5.56/.223 round is suboptimal for both bigger and smaller game. Duh!
An AR is fine in some states for hunting deer. I’ve take deer with mine chambered in 6.5mm Grendel.
Caveat being, as with all ammo, expanding rounds be used.
The government may not limit that right to a privileged class.
To require a showing of specific need does not establish any class, privileged or otherwise. It establishes a need which anyone might suffer, but most people typically will not. Most who do suffer that need will not suffer it permanently.
But leave that aside. If Bruen were true to American tradition, as the opinion insists it is, it would have taken note that some historical sources it relied upon established a right to firearms only for a privileged class. Naturally that went unmentioned, because the Court majority was not prepared to be tolerant in the slightest of any notion of constraint by history or tradition.
lathrop comment “If Bruen were true to American tradition, as the opinion insists it is, it would have taken note that some historical sources it relied upon established a right to firearms only for a privileged class.”
Lathrop – the problem with that statement is it cherrypicks the historical record, just like Stevens did in Heller. As noted by Halbrook, there is ample historical record demonstrating the “right to keep and bear arms for common defence and self defence” and “the right to keep and bear arms for self defence”.
While scalia took liberties with the historical record, Stevens positions on the historical record was egregous.
Joe-dallas — You say that again and again. I think you must have heard it somewhere, and are just repeating it. I re-read the Stevens dissent looking specifically for something to support your assertions. I do not think the support is there. Why don’t you cite specifically what he said that was, “egregious.”
Lathrop – you need to read Stevens dissent again. Stevens seriously tortures the english langauge in his “interpretation” 2A. He completely erases any meaning of the phrase ” the right of the people to keep and bear arms shall not be infringed.” He ignores the multitude of historical writings cited by Halbrook and others.
Stevens statement in paragraph 5 summarizes the illusion gun control advocates operate under – “No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons.”
He is arguing that 2A gave the federal government the power to limit citizens rights in the Bill of Rights. The BoR of course, which was the 10 amendments written to limit the power of the federal government. It takes reverse logic to believe the BOR included a provision to limit citizens rights.
He is arguing that 2A gave the federal government the power to limit citizens rights in the Bill of Rights.
Uh, no. He is arguing that the 2nd Amendment wasn’t about an individual right, so it doesn’t limit Congress’s (or the states’) ability to regulate private gun ownership and use.
Jason – A) he is arguing that right was limited to serving in the militia.
b) he is arging that the operative phrase “the right of the people to keep and bear arms shall not be infringed” doesnt apply to the people.
“If Bruen were true to American tradition, as the opinion insists it is, it would have taken note that some historical sources it relied upon established a right to firearms only for a privileged class.”
And Americans declare that everyone was so privileged. And eventually took that declaration seriously…
deleted … wrong place
Yes you are.
One of my biggest pet peeves is how silly some peeps sound when they use the term AR15. In reality when Stoner created the AR15 it used a design called direct impingement. There are both advantages and disadvantages of using this design. It is definitely cheaper to produce and some claim other advantages. Problem is there is a huge disadvantage of how quickly the weapon becomes fouled. In fact in Vietnam the original AR15 production method had to be modified to improve how long the weapon could function before the fouling rendered it unusable. In fact one common description of direct impingement is the description of ‘shitting where you eat’.
Truth be told a long piston design like the AK47 uses makes it much more reliable especially in a long duration fire fight. As an interesting side note while the AR15 has a very distinctive shape many other weapons have adopted the same basic look even though the internals may be very different. Not trying to make definitive price points but what I would call a bargain basement AR15 of the Stoner design may run $US600 or so. A similar looking weapon in .22 caliber could cost $US300 while a purist shooter might well pay upwards of a couple of thousand for a short piston design with boron coated internals and a match grade barrel. Thing is if someone was 20 feet away and it was not in good light you would be hard pressed to tell which was which and I am sure the majority of peeps would call them all AR15s.
Early problems with the M16 jamming was the result of bean counters not issuing cleaning kits and the use of cheaper “ball powder” which resulted in faster fouling.
The AK was designed to be “Ivanproof” — it had larger internal clearances so that it wouldn’t jam if dirty — but this sacrificed accuracy.
One big problem with banning AR-15s is the used by military test used in Miller. Sure, the military uses AR-15 type machine guns, instead of the semiautomatics that we are allowed to own. That means operationally they are near identical – the military version has a three position selector switch, while the civilian version has an identical two position selector – except that is missing the full auto/burst mode position. They accept identical accessories, they are disassembled and cleaned identically, etc. AR-15s are the closest thing to our main battle rifles used by our military for nearing 60 years now. That means that 60 years of veterans of service in our military were trained in the exact same manual of arms as used by the AR-15 (and AR-10).
The other thing about the Massachusetts assault weapons ban is how then AG (now Governor) Maura Healey EXPANDED it.
https://www.mass.gov/news/ag-healey-announces-enforcement-of-ban-on-copycat-assault-weapons
The AR-15 is semiautomatic, requiring a separate function of the trigger for each shot, while the M-16 is automatic, meaning it fires continuously as long as the trigger is pulled back. Despite that basic difference, they looked similar on the outside, causing the Violence Policy Center see the potential for confusion in the public. The idea of labeling the AR-15 and like rifles “assault weapons” and banning them was born.
This is why these style of weapons have become so popular among certain people in recent years. They like the idea that they have something that is almost the same as soldiers. They equate having that weapon with being powerful. Take away their guns and you’d take away that feeling they get from it.
Yeah, and? Is their motivation any less defensible than people who have to have the latest kitchen gadget of whichever celebrity chef is popular this week? Is it any different than the people who insist on a particular car or clothing or pretty much any other branded good or service because it’s popular or satisfies some other aspect of their personality?
Yeah, and? Is their motivation any less defensible than people who have to have the latest kitchen gadget of whichever celebrity chef is popular this week?
…Should I give you another few minutes to think about that?
Done? Still don’t see it? Want to try again?
Still no? Okay, then.
What is the latest kitchen gadget designed to do? How many people can be killed by someone choosing a Tommy Bahama shirt? I suppose some vehicles could be said to be more dangerous than others, but then, we do place limits on what is a “street legal” car, right? And people need a license to drive that can be revoked if they show that they are irresponsible, true?
Do you understand now why indulging in people’s Rambo fantasies is not the same as anything you brought up? The gun industry specifically started marketing their products to feed into that mentality after the assault weapons ban expired.
Is there anything subtle about this?
That ad campaign appeared in 2010.
More people are killed by SUVs.
Do you have any idea how many 4 wheel drive vehicles never leave the paved road? And what is a 3 ton vehicle with 30 gallons of high explosive in the back but a (hopefully) guided missile?
I suppose that this is what you are imagining happens?
Gasoline is not a high explosive. That term is reserved for material typically used in bombs, demolition and mining. TNT, C4, etc. are high explosives. Cars and trucks don’t explode in collisions like in the movies, or we’d be seeing people demanding even more safety regulations in manufacturing them, or people simply wouldn’t buy cars that can explode.
I suppose I could be generous and assume you were using hyperbole, but that aside, I don’t see any gun rights advocates being willing to require a license to own any gun, a license that you have to pass a written test to get and can be revoked relatively easily compared to our civil rights. Or to require all guns to be registered with the government, either.
Really, it isn’t worth even responding to the “cars are deadly too” argument unless it explicitly comes with a proposal to require the ability to own a gun be treated the same as owning and driving a car in all of those respects.
There’s nothing better to convince Americans you have no ill designs on their liberty than trying to confiscate their guns!
Is that supposed to be an indictment of the “gun grabbers” or the Americans that equate freedom with owning semi-auto rifles with 30-round magazines (or more)?
Gun culture in America is essentially unique among developed nations. Nowhere else in the free world is that freedom associated with individual gun ownership. And where else in the industrialized free world have we seen multiple instances a year of someone using a semi-auto rifle to shoot as many people as they can?
As opposed to running over people with a vehicle?
In most of the 20th century, the antigun movement focused on banning handguns. Rifles and shotguns were said to be good, pistols and revolvers bad.
Halbrook writes that as if it were somehow arbitrary or mysterious. It is not. The distinction between rifles and shotguns on the one hand, and pistols and revolvers on the other, was that owners of the former rarely used them to shoot people. Owners of the latter fairly commonly did shoot people with them. Previously, everyone knew that.
Now, the vogue for AR-style rifles is changing that former understanding. Criminal use of AR-style rifles is still far less common than criminal use of pistols and revolvers. But there are still vastly more pistols and revolvers than there are AR-style rifles. Per-weapon, the criminal statistics have become notably closer among those classes—although criminal conduct still remains disproportionately common among handgun users.
It is foreseeable that if AR-style gun ownership continues to increase disproportionately, criminal use of rifles as a class will increase with it. That will happen even if other styles of long arms will not contribute to the change. A public mindful of that is a justifiable and ordinary reason to expect calls for regulation of AR-style weapons to prevent it. But it is not by any means the only reason.
Reasonable public concern and regulatory attention to AR-style rifles also comes from their functional character. Because of particularly deadly capacities accurately understood as designed into them, AR-style weapons have become weapons of choice for society’s most widely-feared criminals—mass shooters of people targeted at random.
It is one thing to expect the public to accommodate itself to gun homicides perpetrated by criminals killing each other. Most people have little reason to feel personally threatened by that. It is quite another thing to back increase for a style of weapon from which even uncommon experience has shown no one can feel safe.
Thus, gun advocates badly misjudge their audience when they insist that murders caused by maniacs armed with AR-style weapons remain a tiny fraction of all murders. That offers no comfort at all to a previously-sheltered suburbanite who reckons correctly that proliferation of AR-style weapons has increased by multiples the most-feared gun danger to which he and his family are exposed.
Of course, even that does not yet exhaust the reasonable basis for public concern about AR-style weapons. It is also increasingly apparent that AR-style weapons have become guns of choice among advocates of political violence, insurrection, and rebellion. Gun advocates who think that is an encouraging trend, and say so, are all too common. Most members of the public do not agree. They do not think there is any right protected by U.S. constitutionalism to arm oneself for insurrection and rebellion. Legal experts mostly agree with that. They point to constitutional provisions for use of militia arms against insurrections, not in support of them.
There remains to be addressed one more reasonable public concern about AR-style weapons. They are used increasingly for display. Their owners carry them in public to intimidate expression of political views the gun wielders disfavor.
That by itself is an excellent reason to consider whether special regulatory attention for AR-style weapons might be justified. Armed intimidation in politics is a style of gun use which puts firearms rights in direct conflict with other enumerated rights, such as free speech and assembly.
Those latter rights cannot be allowed to give way to intimidation by groups of thuggish figures acting in concert, plated in body armor, carrying guns. Advocacy which favors that is not advocacy on behalf of the rights of Americans.
“That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it”
“The government may not limit that right to a privileged class.”
People don’t remember how NY courts treated Jaid Barrymore (Drew’s mother) when she was arrested for illegal postering and was found to be carrying an unregistered .357 without a permit.
If you’re one of the special people, you need not bother with permits.