Posted By: Maddalena Savary, Danielle Ser, Wade Simpson, Zach Stevens, Shayna Stewart, Jimmy St. Clair, and Tim Taylor
Living in America means living with mass shootings. Between 1989 and 1994, California experienced two tragic mass shootings: the Cleveland Elementary School Shooting and the 101 California Street Shooting. Both shootings had two things in common; white men precipitated both massacres, and both used assault weapons to murder more than five people. In response, Senator Dianne Feinstein proposed legislation that restricted “semiautomatic assault weapon” possession in America. After some changes, Congress passed the “Public Safety and Recreational Firearms Use Protection Act,” commonly known as the “Federal Assault Weapons Ban,” as a subsection to the “Violent Crime Control and Law Enforcement Act of 1994.”
Federal and state governments define assault weapons (not limited to rifles or pistols) as any firearm fitting certain characteristics. These characteristics include semi-automatic firing modes, large-capacity magazines, pistol grips, flash suppressors or silencers, bayonets, and folding or telescoping stocks. “Semi-automatic” means the firearm automatically chambers a new round each time the shooter pulls the trigger. Magazines are devices that feed bullets into the firearm; a large-capacity magazine allows the shooter to fire more rounds before having to insert a new magazine into the firearm. Both rifles and pistols have the ability to be equipped with large-capacity magazines (usually defined as more than 10 rounds).
Under the Federal Assault Weapons Ban of 1994, “no person shall manufacture, transfer, or possess a semiautomatic assault weapon.” Among the weapons banned were 19 assault weapons and some high-capacity ammunition magazines of ten or more rounds. The ban did not extend, however, to people who lawfully possessed the weapons covered under the ban. The ban also contained a “sunset provision” that set the ban to expire in 2004 if Congress did not renew it. In 2004, the Republican-controlled Congress declined to renew the weapons ban.
Since the ban’s expiration, several other mass shootings have taken place across America, among them the recent San Bernardino shooting that claimed the lives of 14 people. The increased awareness of these mass shootings have sparked renewed public concern about the legality of stricter gun control laws.
In the absence of national legislation banning assault weapons, numerous states, cities, and counties have enacted weapon regulations. However, some of these state and local restrictions have sparked constitutional concerns relating to the Commerce Clause and the Second Amendment. State weapon regulation is likely permissible where a state rightly navigates these two constitutional concerns. Therefore, this blog post addresses how states may regulate assault weapons without violating either the Commerce Clause or the Second Amendment.
Accordingly, this post begins with a history of weapons regulation in America. Next, the post discusses governmental powers under the Commerce Clause, the dormant Commerce Clause, and the Second Amendment. Then, the post describes the analysis utilized by the circuit courts in applying constitutional principles to weapon regulation cases. Throughout, the post answers the question of how a state may rightly navigate language so as to comply with the Constitution. Specifically, to comply with the Commerce Clause, a state must demonstrate that the regulation does not unfairly prejudice citizens outside the state and does not implicate either the channels of interstate commerce, instrumentalities of interstate commerce, or activities that substantially affect interstate commerce, so as not to infringe upon a power held by the federal government. In complying with the dormant Commerce Clause, the state must show that the regulation supports a valid state interest (such as providing safety for its citizens). Also, the state will have to show that the regulation doesn’t severely disrupt economic activity throughout all of the states. Finally, under the Second Amendment, regulatory language will need to demonstrate that the weapons were not in common use or were not typically possessed by law-abiding citizens for lawful purposes. If, however, the weapons are in common usage, the regulation will need to show that the governmental interest in regulating such weapons is the least restrictive means necessary to achieve a state public policy concern, such as safety.
Guns and the Commerce Clause: Real Bang for the Buck
- Federal Commerce Power
Congress has the power to regulate commerce among the several states. Article I, Section 8, Clause 3. Further, Congress has the authority to make all laws that are necessary and proper to carry out this power. Article I, Section 8, Clause 18. A federal act falls within the scope of Congress’ commerce power if the activity being regulated “substantially affects” commerce and the means chosen by Congress is “reasonably related” to Congress’ objective in regulating such activity. In United States v. Lopez (1995), the Court invalidated the Gun-Free School Zones Act; the act criminalized possession of a firearm near a school zone. The Court in Lopez developed a test that laid out three categories of activities that fall under the Commerce Clause power afforded to Congress, including: (1) use of the channels of interstate commerce, (2) instrumentalities of interstate commerce, and (3) activities that substantially affect interstate commerce. Applying this test to the statute, the Court found it violated the Commerce Clause because the activity being regulated (possession of guns in a school zone) and was not economic in nature. The Court reasoned that to extend Congress’ Commerce power that far would convert Congress’ authority into a general police power of the sort retained for the states and not the federal government.
If the Federal Assault Weapons ban of 1994 had been challenged under the Lopez test, a court would likely rule that the regulation would fall under Congress’ commerce power because the manufacture and distribution of assault weapons into the national marketplace necessarily implicates the use of interstate commerce channels. Consequently, a state’s attempt to replicate similar legislation might raise the question of whether such legislation would be an intrusion into Congress’ commerce power. Notably, at least one municipality has enacted such legislation without challenge.
B. The Dormant Commerce Clause
The dormant Commerce Clause restricts the ability of a state to enact legislation that improperly burdens or discriminates against interstate commerce. Although the dormant Commerce Clause does not expressly exist in the text of the United States Constitution, it has been inferred by the Supreme Court from the commerce power constitutionally provided to Congress. Even where the power has been “dormant,” Congress retains this limitation on state power to regulate certain activities. The power to regulate interstate commerce may be exclusively a federal power or, in certain circumstances, may be exercised concurrently with the state power. Gibbons v. Ogden (1824). However, where a uniform national rule may not be necessary and where regulation is susceptible to local diverse legislation, a local regulation may be permitted. Cooley v. Board of Port of Wardens. One such instance is where local regulation is imposed for the purposes of public health and safety. Therefore in drafting regulation banning weapons, local governments are more likely to prevail if the regulation clearly articulates: 1) a need for local regulation and 2) a public safety interest.
Even so, it is likely that Congress is better suited to regulate commerce because state regulations sometimes 1) harm out-of-state citizens, or 2) create inconsistencies among state regulations causing economic inefficiencies. For example, in Kassel v. Consolidated Freightways Corp., the Court examined the potential discriminatory impact of interstate transportation regulations and held that the Iowa law unconstitutionally regulated the size of semi-trucks permitted in the state. The Court’s fact-intensive inquiry found that trucking companies would have to travel more highway miles with the regulation in place which effectively increased the chance of auto-collisions. Since the regulation really only served to protect Iowa citizens, the Court determined that the infringement on the dormant Commerce Clause outweighed the state’s alleged public safety interest because the likelihood that the state’s regulation would actually increase public safety was low.
Applying Kassel, a guns-rights activist group could challenge state assault weapons regulations. For instance, a plaintiff might argue that the ban forces shippers of assault weapons to chart more road miles by having to drive around the state. The regulation (arguably) would be discriminatory against out-of-state citizens. A plaintiff might also claim that because the states lack uniform assault weapon regulations, the cost of doing business has become severely inefficient. The state, on the other hand, could argue that assault weapons bans are precisely the sort of safety measures to which the dormant Commerce Clause applies. These regulations (arguably) guarantee the safety of state citizens.
Currently, there is no case law available that challenges a weapons regulation under the dormant Commerce Clause. Therefore, it is unclear how the courts would rule on this issue. Opponents to state or municipally enacted regulations on assault weapons might challenge such legislation under the dormant Commerce Clause in the future. Through an analysis of the language in the Federal Assault Weapons Ban of 1994, a federal court would likely rule that a state’s restriction of the manufacture, transfer, and possession of assault weapons would place a burden upon interstate commerce. Therefore, any state or municipality wishing to resist a challenge under the dormant Commerce Clause of their enacted assault weapons regulation would need to (1) state a valid interest in regulating such activity, and (2) demonstrate that the legislation would successfully serve that stated interest. If a State can prove all of the above, then its regulation would likely survive a dormant Commerce Clause challenge.
Second Amendment: Putting State Weapon Laws in the Crosshairs
In addition to the federal Commerce Clause issue, a state wishing to enact a weapon regulation will need to draft its statute consistent with the language of the Second Amendment and the Supreme Court interpretations given in the precedent cases.
The Second Amendment: A Long History of Regulation
The history of gun ownership in the United States is a history of regulation. From the Colonial period through the ratification of the Constitution, there were a number of recurring issues about individual gun ownership that were hotly debated by state legislatures and the first Congress. The first laws in the United States pertaining to regulation of private ownership appeared nearly the same time as settlers to the New World. The first weapon regulatory schemes originated in Great Britain with an act of Parliament in 1541 that banned concealable weapons including hand crossbows and pistols. The 1689 British Bill of Rights regulated military arms such as pikes, crossbows, and firearms. This concept of “regulation without confiscation” would manifest in the Colonial governments over the next century. In New England, the Colonies passed laws, which required, rather than allowed, white males to possess arms for the collective defense of the settlements. Connected with this requirement was a concomitant fear of a well-armed population. A well-armed population, although necessary for protecting trade and the settlements from attacks by Native Americans and other Colonial settlers, also meant a population capable of revolt. As history shows, this fear was justified.
The fear of requiring a well-armed population came to fruition in 1676 when Bacon motivated a popular rising against Governor Berkeley’s rule. Governor Berkeley failed to address colonist demands regarding their safety, so Virginian civilians of all classes took up arms against Berkeley, chased him from Jamestown, and torched the capital. After the dust from the revolt settled, Virginia passed laws severely limiting the class of persons that could possess firearms. Most other colonies followed suit, and through the 18th century Colonial laws shared the practice of compelling firearm ownership for some while banning it for others. By the time of the American Revolution, however, the Colonies changed their tone on gun ownership, and the regulatory laws tended to show two commonalities. First, that gun ownership was inherently tied to one’s duty to serve in the militia. Second, the States’ believed they could regulate firearm ownership.
At the time of the Constitutional Convention in 1789, every colony had laws on its books regulating the right to bear arms, and this right became a hotly debated topic among the delegates. The Framers feared a strong federal government, and nothing could be feared more than a strong federal army. In Federalist 46, James Madison defended the state’s rights to a well-regulated militia subject to federal supervision. As the Framers learned during the American Revolution, the militia, while mythically noble, was in reality poorly trained and subject to desertion. To combat this, the federal government would train the militias such that in the event of a tyrannical federal takeover, the militias could respond effectively.
In this context, Madison proposed the first draft of the Second Amendment, which read: “The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render militia service in person.” Most of the debate surrounding the Amendment at the Convention focused on the “conscientious objector clause,” which detractors believed could be used by the federal government to determine who could qualify to serve in the militia. This clause was eventually dropped, and the Amendment’s language was altered to its present form which reads: “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 new draft emphasized some important stylistic changes. First, the word “country” was dropped in favor of the word “state.” Second, the words “best security” were replaced by “being necessary to the security of a free state.” These changes suggest that the theory of the Second Amendment, like the lessons learned from Colonial regulation, were to balance the interests of State security against the (justified) fear of a well-armed majority.
B. Historical Second Amendment Precedents
The United States Supreme Court has since interpreted the language of the Second Amendment in several landmark cases that have played an intricate role in the evolution of the Second Amendment. Initially, in United States v. Cruikshank (1876), the Supreme Court held that the Second Amendment only restricts the power of the national government stating, “The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” Additionally, in Presser v. Illinois (1886), the Supreme Court held that while the Second Amendment forbids the U.S. government from infringing on the states’ rights to form a militia, it further found that there is no individual right to bear arms for self-defense was granted to the people. Rather, the Court found that the Constitution provides state and federal governments the right to form a militia for the purpose of providing security, but did not extend the right to individuals. In reaching this conclusion, the Court validated the criminalization of state laws regarding the formation of militias without state permission.
In United States v. Miller (1939), the Court substantially altered the landscape of the Second Amendment. The Miller Court held that the Second Amendment does not allow for the possession of an unregistered shotgun with a barrel of less than eighteen inches in length. Miller was further interpreted in Heller to emphasize that the Second Amendment does not protect weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. D.C. v. Heller (2008). Heller further held that a District of Columbia statute that banned the possession of handguns in the home violated the Second Amendment. In authoring the decision for the majority, the late Justice Scalia wrote that the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding of the country. The natural meaning of “to bear arms,” as used in the Second Amendment, according to the opinion, means “wear,” “bear,” or “carry upon the person or in the clothing or in a pocket,” for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person. The Court essentially ruled that the Second Amendment guarantees the individual right to possess and carry weapons for the purpose of personal self-defense. The Court was, however, careful to again limit the weapons it was referring to as handguns, as D.C.’s statute functioned as “. . . a prohibition of an entire class of “arms” commonly used by American society for the lawful purpose of self-defense and a complete prohibition is invalid.”
More recently, in McDonald v. City of Chicago (2010), the Supreme Court declared that the Second Amendment’s right to keep and bear arms is fully applicable to the states through the Fourteenth Amendment. The weapon regulation in McDonald was similar to that in Heller, and it virtually criminalized a citizen’s right to possess any unregistered handgun and further prohibited the registration of most handguns. In a plurality decision, the Supreme Court struck down its prior precedent, holding that an individual’s right to keep and bear arms is incorporated and applicable to the states and local governments in what is known as the “Incorporation Doctrine” of the 14th Amendment. However, the Court found that the Second Amendment right to possess a firearm is not unlimited, and thus some gun law bans are constitutional; the right to keep and bears arms does not protect or guarantee a right to possess “any type of firearm, anywhere, and for any purpose.”
In addition to the Incorporation Doctrine, states are bound by these Supreme Court precedents under the Supremacy Doctrine. The Supremacy Clause of the Constitution of the United States reads, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This means that no state statute can conflict with Supreme Court precedent, nor may a state statute conflict with the United States Constitution. Therefore, a state weapons regulation must comply with federal regulation and the above-listed Supreme Court precedents. Additionally, each state must comply with its own state constitution and precedent. Because the level of restriction placed upon states varies with the specific state constitutional language, this blog post does not attempt to address the state constitutional and precedential application to weapons regulation.
C. Loaded for Bearing Arms: Modern Supreme Court Precedents
As federal precedent concerning the constitutionality of weapon regulations currently stands, lower federal courts are bound by the framework provided by the Supreme Court’s holdings in McDonald and Heller. Generally, the circuit courts will look to the regulatory language to determine whether the Second Amendment has been infringed. For example, McDonald upheld the notion that “deeply rooted in this Nation’s history and tradition…the right to bear arms is among the fundamental rights necessary to our system of ordered liberty.” Furthermore in Heller, the Supreme Court made clear that the central component of the Second Amendment includes the right of “individual self-defense,” and that the right to keep and bear arms is at its greatest strength in “the home, where the need for defense of self, family, and property is most acute.” However, the Supreme Court also recognized a state’s right to regulate gun control under certain circumstances; the Second Amendment does not extend to all types of weapons and is not beyond state regulations. Thus, federal courts may deem certain state weapon regulations constitutional because the right to keep and bear arms does not necessarily translate into a right to possess “any type of firearm, anywhere, and for any purpose.”
IV. Reloading the Second Amendment:
Do State Weapon Regulations Implicate the Second Amendment?
In determining whether a state’s weapon regulation implicates the Second Amendment, courts generally first perform a historical inquiry as to whether the regulation at issue falls within the scope of the Second Amendment. This limitation reflects the historical tradition of prohibiting the carrying of “dangerous and unusual” weapons that are understood to be outside the Second Amendment’s scope. Courts have typically interpreted the Second Amendment to allow for weapons that are (1) in common use and are (2) typically possessed by law-abiding citizens for lawful purposes. Notably, the Seventh Circuit differentiates from this typical analysis by asking not only whether the weapons were common or typically possessed by law-abiding citizens, but also whether there is some reasonable relation to the preservation or efficiency of a well-regulated militia.
Consistent with the Supreme Court threshold requirement, federal circuit courts have held that if the Second Amendment is not implicated in a statutory challenge, then the state’s statute should not be subject to a Second Amendment challenge. On the other hand, if the circuit finds that the Second Amendment is implicated, then each circuit court moves on to assess the regulation’s burden.
For example, the Second Circuit applied this test in N.Y. State Rifle & Pistol Ass’n v. Cuomo in assessing whether a weapon is “common in use” and “typically possessed” given “broad patterns of use among citizens.” The Second Circuit held that the Second Amendment was implicated in legislation regulating certain semiautomatic assault weapons which were at least two percent of the nation’s firearms. Similarly, the Ninth Circuit held in Fyock v. City of Sunnyvale that a city ordinance banning large-capacity magazines implicated the Second Amendment. The plaintiff, relying primarily on marketing research, demonstrated that large-capacity magazines could be considered “common.” Consistent with this understanding, the Fourth Circuit ruled in Kolbe v. Hogan that large-capacity magazines were “common, standard, and typically possessed” because most pistols were manufactured with these magazines, and at the time more than 17 million of these magazines were sold in the United States.
A. Looking Down the Barrel: How Courts Determine Scrutiny
Once a court has determined that the Second Amendment has been implicated, the court analyzes the burden that such an infringement places upon the individual’s right. In so doing, the lower court considers (1) the nature of the conduct being regulated, (2) the degree to which the challenged-law burdens the constitutional right, and (3) the expansiveness of the prohibition. Therefore, a less severe regulation requires a less demanding showing that the “means” utilized by the regulation is necessary to achieve the “ends” of its intended purpose, whereas, a more severe and intrusive regulation requires a more heightened means-end showing.
i. Intermediate Standard of Review
According to the Supreme Court, where a regulation places a lesser burden upon the right, the court will use an intermediate level of scrutiny and ask (1) whether the government’s stated objective is significant, substantial, or important, and (2) whether the restriction is reasonably tailored to meet its asserted objective. The parties may look to a wide range of sources including: legislative text and history, empirical evidence, case law, and common sense to support their respective claims. In intermediate scrutiny regimes, the burden is upon the government to establish that the statute fails to be closely tailored to a stated significant governmental objective. For example, the Second Circuit determined that an intermediate level of scrutiny was appropriate if the statute restricts only a limited subset of semiautomatic firearms, such as military style assault rifles. Similarly, the Ninth Circuit held in Fyock that although a large-capacity magazine ban did implicate the “core” of the Second Amendment, the ban did not severely burden the right so as to constitute a higher level of scrutiny. Thus, the Second and Ninth Circuits concluded that intermediate scrutiny was appropriate in determining the constitutionality of the state weapon regulation.
ii. Strict Standard of Review
For statutes imposing a greater burden upon the constitutional right, a more severe strict scrutiny standard is applied wherein the court examines whether the statute is (1) narrowly tailored to achieve a compelling governmental interest, (2) the least restrictive means to achieve the compelling government interest, and (3) a reasonable fit between the challenged-regulation and a substantial governmental objective. Again, the burden is on the government to prove the appropriateness of the state’s weapons law. Notably, the Fourth Circuit held that the out-of-the-home/in-the-home distinction bears directly upon the level of scrutiny such that the court will opt for strict scrutiny where laws restrict the right to self-defense in the home. For example, the Second and Fourth Circuits concluded that where the law extends beyond mere regulation and is instead a “total prohibition of possession of certain types of arms,” or implicates citizens’ rights to self-defense, the state’s weapon regulation cannot be upheld as consistent with the Second Amendment under strict scrutiny. The Fourth Circuit held that the law implicated a “core” Second Amendment right of law-abiding, responsible citizens to use arms in defense of hearth and home which would substantially burden a law-abiding citizen’s basic Second Amendment right. Although the Second Circuit will apply the intermediate scrutiny analysis in certain situations, it reasoned in N.Y. State Rifle & Pistol Ass’n v. Cuomo that statutes regulating the possession of weapons in the home fall under the core protection of the Second Amendment right for self-defense and require a strict analysis.
- Ready, Aim, Balance the Factors
i. Intermediate Review
After establishing the application of an intermediate level of scrutiny, the court moves to the actual weighing of the competing interests — the citizen’s individual right to bear arms versus the government’s interest in public safety. Generally, the interest of public safety is assessed based on the stated objective of the ordinance. In determining the fit between the challenged regulation and the government interest under intermediate scrutiny, the courts generally afford substantially defer to the predictive judgments of the legislature, as held in N.Y. State Rifle & Pistol Ass’n v. Cuomo. For example, the Ninth Circuit upheld a law prohibiting high-capacity magazines and stated that the statute served the City’s interest to “reduce violent crime and reduce the danger of gun violence, particularly in the context of mass shootings and crimes against law enforcement.” The court found that the city’s ban reasonably fit its goals because “large-capacity magazines are disproportionately used in mass shootings and against law enforcement personnel.” Similarly, the Second Circuit deferred to the legislature where the restriction was substantially related to governmental interests and crime prevention. In the case, the Second Circuit reasoned that high capacity magazines holding ten or more rounds were more likely to result in more shots fired, more people wounded, and more wounds per victim than other gun attacks.
ii. Strict Scrutiny
In applying the strict scrutiny standard, the Fourth Circuit found in Kolbe that the “sheer breadth of the legislation makes it obvious that the legislation was meant to balance many, sometimes-competing objectives,” and that the law must be narrowly tailored to achieve the compelling governmental interest. The court reasoned that a right to self-defense is largely meaningless if it does not include the right to choose the most effective means of defending oneself. In its application, the Court found that the regulation implicated a core Second Amendment right to use arms in defense of hearth and home. This right protects access to both large-capacity magazines and semi-automatic rifles which can be used for that purpose.
iii Additional Scrutiny
Notably, the reasoning of the Seventh Circuit in Friedman v. City of Highland Park (2015) seemed to conflate the burden assessment and the scrutiny standard into one rationale. Specifically, the court stated that “instead of trying to decide what ‘level’ of scrutiny applies and how it works—inquiries that do not resolve any concrete dispute—we think it better to ask whether a regulation bans weapons that were ‘common at the time of ratification,’ or those that have ‘some reasonable relationship’ to the preservation or efficiency of a well-regulated militia.” The court found that the Second Amendment does not automatically strike down every law regulating firearms. It is within the state’s role to decide which arms a civilian may possess because the state regulates the militia. In balancing the burden, the court found that where the city residents had ample means to exercise their inherent right of self-defense in other weapons, such as pistols, revolvers and long guns, the burden imposed upon all assault weapons and large capacity magazines did not burden the Second Amendment.
C. Shooting Blanks: Void-For-Vagueness Considerations
Additional consideration needs to be given to the clarity of the statute. For example, the Void-For-Vagueness Doctrine under the Due Process Clause of the Fourteenth Amendment was cited by the Second and Fourth Circuits in consideration of the statutes. The Void-For-Vagueness Doctrine requires that statutes be drafted clearly enough and with sufficient definiteness that ordinary people can understand what conduct is being prohibited and so that arbitrary and discriminatory enforcement is not encouraged. Specifically, the Void-For-Vagueness doctrine provides that “no one may be required at peril of life, liberty or property to speculate as to the meaning of statutes.” However, the Fourth Circuit held in Kolbe that the failure of a statute to define all of its terms does not necessarily render it impermissibly vague. “A statute need not spell out every possible factual scenario with precision to avoid being struck down on vagueness grounds.” Conversely, the Second Circuit held that a facial challenge for void-for-vagueness may be overcome where the language of the statute has been used in multiple states and federal statutes without any evidence of confusion. Further, where the law provides additional notice of what firearms and attachments are being regulated by requiring the creation of a website that lists the names of restricted items, it is unlikely that a court will find that the statute is void for vagueness.
V. Don’t Shoot the Messengers!
A state or municipality wishing to enact assault weapon regulations that are being challenged under the dormant Commerce Clause would need to put forth a valid interest, likely public safety, and demonstrate that the legislation would have an actual likelihood of successfully serving the states’ stated interest. Further these bans are likely proper as long as the regulation has a legitimate State purpose and is the least restrictive alternative at achieving that purpose.
A state may ban assault weapons when it rightly strikes a balance between the infringement against Second Amendment protections and public safety concerns. While the circuit courts have differed in their method of approach in addressing weapons regulation, these variations emphasized that “the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in search for national uniformity.” Seventh Circuit in Highland Park . In sum, a state legislature may regulate assault weapons in compliance with some categorical limits on the kinds of weapons that can be possessed and whether the weapons are in common usage.