Shots Fired at the Constitution: Can Congress Ban Assault Weapons?

Posted by:  Cara Dames, Justin Decker, Christopher Dowsey, Alexa DuMity, Alison Durran, Samantha Egan, Alexandra Evans, and Katherine Ewing

1 SB Guns (caption)In December 2015, terrorists used assault weapons in an attack in San Bernadino, California, that killed 14 people and injured 21. The attackers used legal semi-automatic assault weapons which they modified into a fully automatic, or a firearm able to hold a large capacity magazine. Proponents of firearm legislation argue that if the 1994 Federal Assault Weapons Ban were still in effect, this attack could potentially have been prevented. The 1994 Ban, enacted by a primarily Democratic Congress, prohibited the manufacture, transfer, and possession of certain semiautomatic weapons for civilian use. It also included a sunset provision, which required a renewal in ten years otherwise the ban would lapse. In 2004, a primarily Republican Congress failed to reinstate the ban on federal assault weapons. Congress likely has the constitutional authority to reinstate the 1994 Federal Assaults Ban and could also create a statute with similar force and effect as the prior existing ban.

Background Gun Legislation & the 1994 Federal Assault Weapons Ban

In 1775, the American Colonists used guns to wage a long and bloody war against England to break free and gain independence. With the reward of a hard-fought independence, the Colonists were faced with the task of creating the foundation for a ruling government to survive centuries. The Constitution of the United States was executed in 1787, establishing three branches of government to provide a system of checks and balances. The Constitution was later amended to add the Bill of Rights, including the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The meaning of these words has been the source of much debate, especially in recent years, with one side arguing that it protects state sovereignty and the other arguing it protects individual rights to gun ownership.

Over the next hundred years, Americans continued to use firearms to expand the U.S. territory into the Western Frontier, fighting and negotiating with other nations to lay claim to the areas of land we recognize on today’s map of the United States. Technological advances and the Industrial Revolution brought rapid changes in firearm design. Improvements to the firing and loading systems made in the early 1800s gave rise to guns that could hold more ammunition, fire faster, and took less time to reload, making them exponentially more dangerous. Mass production made guns more accessible, and lower prices made guns household items. With this increase in guns and the development of automatic weapons came an increase in crime.

2 GangsterProhibition presented an ideal opportunity for gangsters to gain riches by using firearms, spurring an increase in concern about firearms and subsequent congressional legislative reactions. In 1934, right after the St. Valentine’s Day Massacre, Congress passed the National Firearms Act under the authority of the Taxing and Spending Clause in the Constitution. The legislation was designed to regulate automatic firearms and their registration, and imposed a tax on the making and transfer of automatic-fire guns, shotguns and rifles. Four years later, Congress passed the Federal Firearms Act, using their power to regulate commerce to require that gun sellers have a license to sell, and keep records of the buyers. Continued fear and the assassinations of prominent public figures John F. Kennedy and Martin Luther King, Jr., led to Congress passing the 1968 Gun Control Act. This legislation was implemented to better control interstate traffic of firearms through the expansion of the licensing requirement to more firearm dealers. It prohibited sales of guns over state lines, and expanded the prohibition of sale to individuals by banning sales to convicted felons, the mentally incompetent, and drug users. In 1986, Congress passed the Law Enforcement Officers Protection Act, which made it illegal to manufacture or import armor piercing ammunition. The same year, Congress passed the Firearm Owners Protection Act, easing restrictions on sellers and the sale of some guns; however, it also imposed additional penalties for using a firearm in crimes.

Under the Clinton administration, the federal government again attempted to mitigate public concern of mass shootings that was heavily affecting the States. In 1994, Congress enacted the Public Safety and Recreational Firearms Act, commonly referred to as the Federal Assault Weapons Ban of 1994 (“AWB”), buried in and appended to a number of Republican policies within the Violent Crime Control and Law Enforcement Act. This 10 year ban restricted the manufacture, transfer, and possession, for civilian use, of certain semi-automatic firearms it defined as assault weapons, and large capacity ammunition devices. The ban attempted to explicitly define assault weapons, based on cosmetic features of the firearms, such as pistol grips, bayonet mounts, and attachable grenades, or specific make or models.

Despite this, there were a number of exceptions written in the prohibition, including 660 specific rifles and shotguns; permanently inoperable or antique firearms; rifles and shotguns unable to accept a detachable magazine of more than five rounds; those made for, transferred to, or owned by the U.S. government or U.S. law enforcement agencies. The prohibition also included a grandfather clause that allowed for the legal transfer and possession of guns already in lawful possession at the time of the law’s enactment. The foreign importation of semiautomatic assault weapons was not addressed by this prohibition.

3 No GunsThe AWB passed without significant debate as to where Congress had the authority to enact this prohibition, whether under the Second Amendment, the Commerce Clause, or the Taxing Clause, as in other legislation previously passed. However, the following decade was categorized by Supreme Court cases dealing with the question of constitutional authority to regulate the manufacturing, transfer and possession of firearms in a number of unique situations. See United States v. Lopez, Navegar, Inc. v. United States, Olympic Arms v. Buckles. Through this time, the AWB was never deemed unconstitutional.

The year that the AWB was enacted, former Presidents Carter, Ford, and Reagan wrote to the U.S. House of Representatives urging gun legislation, citing a Gallup Poll that showed that 77 percent of Americans supported a ban on the manufacture, sale, and possession of such assault weapons. However, public opinion is not always reflected in the legislature and the AWB ended in 2004 after failed efforts to renew the Act failed and the legislation hit its 10 year expiration date without renewal.

During the 10 year span of the AWB, violent crime rates and mass shootings in United States dramatically decreased. A study by Princeton’s Sam Wang shows that during the time of the AWB the United States was calmed, despite the spike in 1999 with the Columbine shootings. There remains significant debate as to whether the AWB was the cause of this decrease. Coincidentally, once the AWB expired, there was in fact an increase in demand for the previously banned weapons and assault weapons. Such increased public possession caused speculation on the effectiveness and public policy behind the AWB overall.

In the decade after the expiration of the AWB, the United States Supreme Court continued to address Congress’ ability to regulate the manufacturing, production, and transfer of item in interstate commerce in Gonzales v. Raich (holding that the commerce clause gave Congress authority to prohibit the local cultivation and use of marijuana, despite state law to the contrary).

4 Trigger LocksThe Second Amendment right to bear arms was resurrected in the Supreme Court again in 2008 with District of Columbia v. Heller. This landmark case held that the D.C. ban on registering handguns and the requirement to keep guns in the home disassembled with a trigger lock mechanism violated the Second Amendment. This case notably outlined that the Second Amendment right was not unlimited and does not protect against those weapons not typically possessed by law-abiding citizens for lawful purposes. Still, it remains unknown what the full scope of the Second Amendment is and how it would apply to assault weapons.

Despite uncertainty on Second Amendment grounds, in 2013, in the wake of the Sandy Hook Massacre, there sparked renewed congressional interest in gun control legislation. The proposed Federal Assault Weapons Ban 2013 would have established a regulatory scheme for semiautomatic assault weapons similar to the 1994 law. Unlike the 1994 ban, this legislation did not include a sunset provision and defined a firearm as an assault weapon if it accepts a detachable magazine and has any one of five features, expanding beyond the two feature test in the 1994 AWB. Despite the intentions of Congress, and proclaimed support by President Obama, this act failed in a 60-40 vote due to major opposition by the Republican party and lobbying efforts of the NRA.

After the San Bernardino attack in December 2015, the Democrats in Congress once again began the push to renew the 1994 ban on assault weapons. It is apparent in the extreme rise in United States based mass shootings that the country is facing a severe problem with deadly firearms. Nevertheless, this legislation seems doomed due to the Republican party opposition and a central fear that the lawful rights of hunters and sporting use of such firearms are going to eliminated by this new legislation.

Whether or not such legislation would prevail due to the makeup of Congress, the question that remains is if congressional authority exists to support the federal assault weapons ban today. To explore this possibility, we analyze the Second Amendment, the Commerce Clause, and Equal Protection of the Constitution.

Second Amendment Challenges to the 1994 Ban

“A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Second Amendment – 1791

When Congress passed the 1994 Assault Weapons Ban, much of the legal community still saw the prospect of the Second Amendment guaranteeing an individual right to bear arms as preposterous. Chief Justice Burger thought an individualized Second Amendment right was so inconceivable that he called it a“fraud on the American public.” Scholars on the Second Amendment between 1888 and 1959 comprehensively came to a similar conclusion.

However, that stance was turned on its face by the 2008 landmark United States Supreme Court case, District of Columbia v. Heller. This shift in perspective is largely thanks to a strategic civil rights campaign conducted by the National Rifle Association (NRA).

5 ScaliaIn Heller, the Supreme Court decided the constitutionality of a D.C. handgun ban within the Firearms Control Regulations Act of 1975. The Supreme Court’s analysis found that the Second Amendment protects an individual’s right to keep and bear arms for traditionally lawful purposes such as self-defense and hunting. Based on this finding, the Supreme Court struck down the D.C. handgun ban 5 to 4. The late Justice Scalia emphasized in the majority opinion that “the handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society” for the lawful and central purpose of self-defense.

The court justified the new interpretation by breaking up the language of the amendment in two distinct parts. The court found the operative clause stating, “the right of the people to keep and bear arms” could be read separately from the prefatory clause reading, “a well regulated militia, being necessary to the security of a free state” to find a constitutional right of the people to keep and bear arms. While this individual right is fundamental under the Heller decision, the right is not absolute.

Scalia’s opinion recognized that the Second Amendment does not grant the “right to keep and carry any weapon whatsoever in any manner whatsoever for whatever purpose.”

First, Scalia stated that the Second Amendment would continue to permit “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or law forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The opinion also recognized that the right to keep and carry arms is limited (as outlined in United States v. Miller), to the weapons “in common use at the time”, recognizing a “historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” M-16’s and other fully-automatic weapons were explicitly acknowledged as being appropriate to ban.

6 M16_VariantsHowever, the court never determined the correct level of constitutional scrutiny to apply in the analysis because the handgun ban could not withstand even the lowest level of constitutional review due to its popular use for self-defense.

The 1994 ban on the manufacture of assault weapons is distinguishable from Heller in two ways. First, the ban concerns assault weapons and semi-automatic firearms instead of handguns (the weapons at issue in Heller and McDonald and fully protected under the Second Amendment) or fully automatic weapons (which have been explicitly banned for civilian use since the Firearms Act of 1934). Second, in contrast to the bans at issue in Heller and McDonald, both of which concerned an individual right to “ownership” or to “keep and bear” arms, the 1994 assault weapons ban directly targets the manufacture and supply of a subset of weapons, rather than ownership.

Is an the Assault Weapons Ban of 1994 Constitutional after Heller?

Since Heller, the Supreme Court recognized that the individual right is also protected against state infringement in the case McDonald v. Chicago. After, assault weapons bans were challenged and upheld in a number of states. Specifically, in 2011 a D.C. circuit court upheld revisions to the Firearm Control Regulations Act in the case Heller II. The assault weapons ban included particular semi-automatic models of rifles, pistols and shotguns, such as the Colt AR-15 rifle series. Additionally, it prohibited certain features like pistol grips and thumbhole stocks. Finally, the FRA regulations banned all large capacity ammunition feeding devices holding more than ten rounds.

7 Heller TestImportantly, Heller II introduced a two-part test to determine the constitutionality of a ban under the Second Amendment. The first part questions if the weapons at issue are in common use for a lawful purpose and therefore, their restriction would implicate the Second Amendment. Then, if the weapons are protected under the Second Amendment, it must determine whether the provision can withstand constitutional scrutiny. There are three levels of scrutiny. The courts are inconsistent about whether the intermediate level or the highest level is appropriate for this issue. The differences in the scrutiny levels are the requirements for how narrow the legislation has to be crafted and how clearly the law is connected to the government objective.

In Heller II, the court upheld the new regulations. It found that assault weapons defined in the FRA qualified for protection under the Second Amendment as weapons in common use for a lawful purpose. Nevertheless, the court ultimately held that the ban surpassed intermediate scrutiny because the government provided sufficient evidence that the ban served the substantial purpose of reducing crime in the densely populated District of Columbia.

8 Hunting GunIn sum, Congress would likely have to prove that the weapons contained in a federal assault weapons ban are not in common use for a lawful purpose, like self-defense or hunting. If the court finds otherwise, the government will have to prove that the ban can stand up under either intermediate or strict constitutional scrutiny.

 

Are Assault Rifles Weapons in Common Use for Lawful Purposes?

Assault weapons arguably sit between protected handguns and banned fully automatic weapons on a sliding scale for common use. To meet the Second Amendment protection under Heller’s interpretation, assault weapons must be found to be commonly used by law abiding citizens for lawful purposes.

Unfortunately, there is significant debate over how to define assault weapons. In 1994, Senator Diane Feinstein coined the term “assault weapon” for the purposes of the 1994 Federal Assault Weapons Ban, which sought to restrict the manufacture of any “semiautomatic rifle that has an ability to accept a detachable magazine and has at least” a bayonet lug or a pistol grip.”

The focus of the 1994 ban was on 18 described guns including specific types of AR-15’s and AR-47’s as well as any semi-automatic pistol, rifle, or shotgun with more than 2 specified military style features. It also restricted weapons with large capacity magazines holding more than ten rounds, which accounted for more than 39% of domestically owned guns at the time. More than 118 variations of firearms were later identified with these characteristics by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

In their original form, semi-automatic rifles like the AR-15 arguably operate somewhat similarly to a handgun. Unlike a fully automatic weapon, which fires continuous shots with one trigger pull, a non-modified assault rifle fires one shot per pull of the trigger. According to Heller II, semi-automatic weapons are commonly kept by Americans for self-defense and hunting. According to the Second Circuit, approximately 7 million assault weapons and approximately 4 million AR-15 rifles are owned in the United States. Assault weapons are commonly used for several lawful purposes. They are commonly held for self-defense and protection, are used for hunting, and are also used in marksmanship competitions. Therefore, under the Heller test, it is likely that assault weapons defined in the 1994 ban are protected under the Second Amendment because they are weapons in common use for the lawful purpose of self-defense.

Do Assault Weapons Qualify as “Dangerous and Unusual?”

The more difficult question surrounding the constitutionality of an assault weapons ban revolves around the “San Bernardino Loophole” and whether assault weapons can be considered part of a limited class of weapons (identified in Heller) that are definitively excluded from Second Amendment protection because they are “dangerous and unusual.”

Semi-automatic weapons can easily be made more dangerous with simple modifications. In the recent Sandy Hook and San Bernardino shootings, attackers carried out their killings using semi-automatic firearms that were illegally modified to be fully-automatic. The Sandy Hook killer used a semi-automatic weapon that was not illegal to own under the 1994 ban. However, the modification of the magazine, which allowed it to hold 30 rounds, was prohibited under the Act.

Moreover, despite California’s comparatively strict gun laws, the two San Bernardino killers were able to obtain the semi-automatic rifles through an illegal straw purchase, where someone buys a gun for someone else. After their neighbor gave them the guns, they made illegal modifications to increase the clip size of the guns and change the magazine discharge into a quick reload.

Similarly, the AR-15 and other assault rifles can be readily converted into a fully-automatic weapon through adding either a “bullet button”, a pistol grip, or a folding stock.

Given the ease of how these weapons can be changed to illegally  maximize their lethal capabilities, it seems reasonable that the court could find them to be ‘dangerous and unusual’ weapons that warrant exclusion from the Second Amendment protection .

Does the Individual Right in Heller Extend to the Manufacture and Supply of Weapons?

If the 1994 semi-automatic weapons are found to be constitutionally prohibited under the Heller exception, then the ban against manufacturing them would not seem irrational. However, even if the guns were held to be within the protection of the Second Amendment, the ban on manufacturing may not infringe on the individual right to keep and bear arms because the 1994 Act permited continuation of any lawful possession prior to the enactment.

M&R Photography
M&R Photography

Specifically, the 1994 ban preserved the ability for private owners to sell their guns to other legally authorized persons. Thus, the prohibition against purchasing new models of the banned guns did not completely restrict citizens from being able to possess one of the 1.5 million models already in circulation.

The source of contention is whether Heller’s individual right extends to a right to maintain an unrestricted supply of weapons. If the Heller right is limited to ownership, and not commerce, then a ban on the manufacture of a subset of weapons certainly remains constitutional.

In Heller, one of the limits that the court acknowledged on the guarantee of the individual right to bear arms was “laws imposing qualifications and conditions on the commercial sale of arms.” While “sale” is not the perfect equivalent of “manufacture” for purposes of legal interpretation, the provision is potentially indicative of greater acceptance for limits on the supply of certain weapons as opposed to the outright bans on ownership at issue in both Heller, and McDonald v. Chicago. While the Supreme Court has yet to grant certiorari on an assault weapons case, bans on the manufacture of certain “assault weapons” have been challenged and upheld in several lower courts under varying standards of constitutional scrutiny since Heller and McDonald.

Based on lower court decisions, the manufacture restriction will likely be found constitutional because it does not implicate the right to own commonly used weapons for the legal purpose of self-defense and hunting.

Commerce Clause Challenges to the 1994 Ban

The Federal Assault Weapons Ban of 1994 banned the manufacturing, transferring, and possessing of semi-automatic assault weapons and transferring and possessing large capacity ammunition feeding devices. In looking at prior precedent, all legal challenges to the Federal Assaults Weapons Ban based on the commerce clause were unsuccessful. In these constitutional challenges, the lower district courts held that the Federal Assault Weapons Ban does not violate the commerce clause.

In Article I Section 8 Clause III of the United States Constitution, the Commerce Clause gives Congress the power “to regulate commerce… among the several states.” In Navegar Inc. v. United States (D.C. Cir. 1999), the United States Court of Appeals for the District of Columbia examined the constitutionality of the Federal Assaults Ban based on the commerce clause. In its analysis, the court looked to United States v. Lopez (1995), where the Supreme Court outlined three categories of activities that Congress has the power to regulate under the Commerce Clause. The categories include (1) the channels of commerce; (2) the instrumentalities of commerce in interstate commerce, or persons or things in interstate commerce; and (3) activities which “substantially affect” interstate commerce.

11 Commerce

In United States v. Lopez, the Supreme Court examined the constitutionality of the Gun-Free School Zone Act of 1990 (GFSZA). The GFSZA made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or had reasonable cause to believe, is a school zone.” The defendant, who was arrested for bringing a concealed handgun to school, challenged the GFSZA claiming that Congress exceeded its powers enumerated by the Commerce Clause.

Education concept

The Court concluded that possession of a gun in a school zone did not involve the regulation of channels or instrumentalities of interstate commerce. Since possession of a gun in a school zone is considered an intrastate activity, it could only be banned if it substantially affects interstate commerce. The Court held that the GFSZA did, in fact, exceed Congress’s power in accordance with the Commerce Clause. The possession of a weapon in a school zone does not substantially affect interstate commerce as it “does not arise out of or is connected with a commercial transaction” and is “not a part of a larger regulation of economic activity in which the regulatory scheme could be undercut unless the intrastate activity was regulated.”

Unlike United States v. Lopez where the Court struck down the Gun-Free School Zone Act, which banned an activity that did not substantially affect interstate commerce, the court in Navegar Inc. v. United States determined that the manufacturing, transferring, and possession of semi-automatic assault weapons does substantially affect interstate commerce. The court analyzed the congressional hearings where the Federal Assault Weapons Ban was originally created in order to determine Congress’ intent and purpose behind the act. The purpose behind it was to decrease the demand of semi-automatic assault weapons in an attempt to control and restrict their interstate commerce. Although mere possession of semi-automatic assault weapons can be seen as an intrastate activity, a ban on possession is necessary in order to effectively regulate the manufacturing and transferring of such weapons.Therefore, Congress has the power to regulate all of these activities under the Commerce Clause.

Other Supreme Court decisions clarifying Commerce Clause jurisprudence include United States v. Morrison (2000) and Gonzales v. Raich (2004). In United States v. Morrison, the defendant challenged the constitutionality of the Violence Against Women Act of 1994 (VAWA) which provided damages to female victims of violence. In determining whether gender motivated violence is related to interstate commerce, the Court found that “[g]ender motivated crimes of violence are not, in any sense of the phrase, economic activity,” as these crimes are not economic in nature. In addition, the chain of causation between violent crime against women and an affect on interstate commerce is too attenuated. Therefore, the Court held that the VAWA could not be upheld under the Commerce Clause.

13 GonzalezIn Gonzales v. Raich, the Supreme Court upheld a statute regulating the private growth of medicinal marijuana intended solely for personal use. Although this activity is characterized as purely intrastate, the Court held that failure to regulate would undercut the regulation of the interstate commerce, which would be a significant aggregate effect on the market as a whole. The Court also used and Ends/Means test to hold that banning private possession of marijuana is a reasonable means for achieving the end of controlling interstate commerce of controlled substances. Thus, the Court upheld the statute under the Commerce Clause.

In creating a statute with similar force as the Federal Assault Weapons Ban, Congress has the constitutional authority to ban the manufacturing, transferring and possession of semi-automatic assault weapons under the Commerce Clause as these activities substantially affect interstate commerce. In creating similar provisions as the original 1994 Ban, the Commerce Clause gives Congress the power to regulate activities that are economic in nature and have an aggregate effect on the interstate market of the activity. Although these activities can be seen as purely intrastate, the Supreme Court has held that if the failure to regulate an intrastate activity undercuts the regulation of the interstate market of that activity, then Congress has the power to regulate it under the Commerce Clause. In conclusion, Congress has the constitutional authority under the Commerce Clause to create a statute with similar force as the Federal Assault Weapons Ban of 1994.

Equal Protection Clause Challenges to the 1994 Ban

The original Federal Assault Weapons Ban of 1994 also was challenged on Equal Protection grounds, so it is prudent to address that argument in case Congress ever attempts to resurrect that prohibitory legislation. The Equal Protection Clause is found in §1 of the 14th amendment and reads, “no State shall…deny to any person within its jurisdiction the equal protection of the laws.” Historically, the Equal Protection Clause has been used to protect against inappropriate classifications of people, as in Brown v. Board of Education. However, the Supreme Court has previously engaged in equal protection analysis of things. In Minnesota v. Clover Leaf Creamery, the Supreme Court discussed the Equal Protection Clause in relation to paper and plastic milk containers.

When making an Equal Protection Clause analysis, the Supreme Court uses a 3-tiered approach. The first-tier is subject to strict scrutiny and the government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. These classifications include race, national origin and religion, among others. If the classification is not subject to strict scrutiny then the government only has to show that the challenged classification serves a compelling state interest. These classifications are important, because if a new Assault Weapons Ban were to be challenged it is necessary to know what level of scrutiny the Supreme Court would use.

The Federal Assault Weapons Ban of 1994 was challenged on Equal Protection grounds in Olympic Arms v. Buckles in 2002. The Sixth Circuit addressed the issue, beginning with whether or not the Equal Protection Clause applied to people, things, or both. They held that they need not address the constitutional question and that if they assumed the Equal Protection analysis were appropriate they “would have to conclude that the semi-automatic assault weapons ban meets all constitutional requirements.” They then addressed the level of scrutiny (as discussed above) to apply to this case. The Court found that Sixth Circuit precedent did not recognize a fundamental right to gun ownership or that gun owners were a suspect class so therefore they would not apply the first-tier strict scrutiny analysis.

The Plaintiffs brought two claims “(1) that several of the weapons on the prohibited list were the functional equivalents of weapons specifically protected under the 1994 Act, and (2) that the statutory criteria outlawing other unlisted semi-automatic weapons serve no legitimate government purpose.” Under the first claim, the Court reasoned that it was rational for Congress to ban weapons commonly used in violent crimes and also exempt weapons that are commonly used for recreational purposes. Congress’s choice can still be rational even if there is similarity between banned and exempt weapons. Therefore, the classification discrepancy does not destroy the constitutional legitimacy of the act. The plaintiffs also argued that the ban on weapons that have more than one of the enumerated features banned by Congress was irrational because they do not work in tandem. The Sixth Circuit held that each feature makes a weapon potentially more dangerous, and also some of the features are not used on weapons designed solely for hunting, so this is once again not irrational on the part of Congress. “Congress’s decision first to target weapons commonly used for criminal activity or, likewise, those most heavily loaded with dangerous features is within their legislative authority.” The Sixth Circuit concluded that the plaintiff’s had failed to show that the ban was not a legitimate exercise of congressional authority and that the ban violated equal protection.

Reinstating the Ban or Crafting a New One: Today’s Challenges

Although challenges to the Federal Assault Weapons Ban of 1994 on Equal Protection Clause grounds were unsuccessful at the Sixth Circuit, when challenged in Olympic Arms v. Buckles, it is less likely a reinstated Federal Assault Weapons Ban could survive such Equal Protection attacks in a post-Heller setting today. Further, due to the right to individual gun ownership expressed in Heller, challenges to an assault weapons ban on Equal Protection Clause grounds may prove unnecessary for opponents of such prohibitions, as the Heller and MacDonald precedents directly address many of the concerns for gun owner protection.

14 Merrick_GarlandAs the Supreme Court’s Neo-Formalist leader and Heller majority writer, the late  Justice Antonin Scalia , no longer serves on the Bench, and his replacement remains unclear, it is difficult to predict how a new ban, similar to the 1994 Federal Assault Weapons Ban, would be treated if constitutionally challenged in the Supreme Court. This issue can be examined more closely, however, if current Supreme Court Judicial Nominee, Merrick Garland, is indeed confirmed to the Court. Garland, the current Chief Justice for the United States Court of Appeals for the D.C. Circuit, is a well respected moderate judge, appointed by President Clinton to the D.C. Circuit in 1997. Garland has served under Presidents from both parties during his 19 years on the bench. Garland’s reputation for judicial restraint and his unbiased upholding of the law indicate his inclination to follow precedent despite his personal opinions. In regard to the future of a federal assault weapons ban, the confirmation of Garland to the Supreme Court likely would not change its precedental landscape, as Garland would likely simply follow Scalia’s opinion in Heller. This potential result indicates the right for civilians to bear certain arms would remain in effect, and bans to restrict such a constitutional right would need to be crafted with careful specificity and deference to Heller’s interpretation of the Second Amendment, as well as Congress’ powers under the Commerce Clause and Equal Protection Clause.

In conclusion, under Heller, Congress has the constitutional authority to reinstate the 1994 Federal Assaults Ban under the Second Amendment, the Commerce Clause, and the Equal Protection Clause. Congressional power will not be swayed whether the court determines that assault weapons are a class of firearms within the protection of the Second Amendment or they qualify for exclusion as dangerous and unusual weapons. The power to reinstate the statute is consistent because the 1994 ban focuses on regulating the right to manufacture, rather than the right to own assault weapons.

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Shots Fired at the Constitution: Can Congress Ban Assault Weapons?