Is there a constitutional right to have a rapidly firing assault gun?

Constitution Daily – by Lyle Denniston

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the latest legal developments related to assault weapons bans, including one case to be considered by the Supreme Court at its private Conference on Thursday.

“Authorities have said the weapon used in the deadly shooting at an Orlando, Florida, nightclub was an AR-15.  Dozens of companies in the U.S. produce versions of the AR, which is the most popular weapon of its kind in the United States.  There are as many as 9 million AR-style weapons in the U.S.  Prices run from $550 up, and the going price is usually less than $1,000 for a new gun.”  

Guns_twitter– Excerpt from an online story on June 13 by Raycom News Network.

Eight years after the Supreme Court recognized an individual’s right under the Second Amendment to have a gun for personal self-defense, the deepest division over what that means now focuses on the issue of access to assault weapons – especially, the very popular AR-15, a rapidly firing civilian version of the military’s old standby, the M-16 rifle.

A handful of states or cities, citing mass killings in recent years by individuals armed with an assault weapon, have passed laws to flatly ban the possession of such guns.  By coincidence, in the wake of the killings early Sunday at a gay nightclub in Orlando by a gunman using an AR-15, the constitutionality of such bans is at issue in a case now awaiting the Supreme Court’s attention. The scope of the Second Amendment as it applies to such guns is definitely not settled.

Following the shooting of 20 young students and six educators in the Connecticut city of Newtown four years ago, the state legislature in 2015 added new provisions to existing gun control laws, and in the process broadened its ban on semi-automatic guns, which it labeled “assault weapons.”  A total of seven states and a few cities now have similar laws on the books, and so far none of those has been struck down in a final ruling, although a ban enacted in Maryland has been under a constitutional cloud because of a federal appeals court’s initial reaction to it.

The Connecticut case, Shew v. Malloy, reached the Supreme Court in February in an appeal by four residents and two organizations, after the U.S. Court of Appeals for the Second Circuit upheld the ban, finding it did not violate the Second Amendment.  The appeal in that case is scheduled to be considered by the Justices at their private Conference on Thursday, less than a week after the nightclub massacre in Orlando.  The Justices surely are aware of the Orlando incident, but will attempt to put that out of their minds as they examine the issue.

The state of Maryland also passed such a ban following the Newtown shooting, and that statute has been under review by the U.S. Court of Appeals for the Fourth Circuit.  The Maryland law flatly outlaws owning an assault-weapon and bullet magazines holding more than 10 rounds.

Last month, 14 judges of the Fourth Circuit Court sat together in Richmond, Virginia to ponder the constitutionality of Maryland’s Firearm Safety Act. State officials in Maryland had persuaded the full bench of that appeals court to take up the issue after a three-judge panel had ruled. The panel declared that the ban had to be judged by the toughest constitutional test there is for a government action or law – “strict scrutiny.”  A law measured by such a standard will seldom be upheld, and gun rights advocates have been pressing the courts to use that test.

One of the probable reasons that the full bench was persuaded to review the case (setting aside the panel’s ruling) is that four other federal appeals courts have ruled differently. Those other courts have used a lower constitutional standard and upheld bans on assault-weapons and, in some of the cases, high-capacity magazines, too.

One of those rulings was by the Second Circuit Court in the Connecticut case now on the Supreme Court’s docket.  In another of those decisions, the U.S. Court of Appeals for the Seventh Circuit upheld a ban imposed by a local Illinois government in Highland Park, Illinois.

A local resident who owned that type of weapon and magazine took his Second Amendment challenge to the Supreme Court, but the Justices refused last December to hear his case.   That left the ordinance intact.

Justice Clarence Thomas (in a dissenting opinion joined by Justice Antonin Scalia, who has since died) argued then that the Seventh Circuit Court had turned the Second Amendment right to have a gun into a “second-class right.”

(In February, when the Supreme Court held a hearing on a federal law that takes away the right to a gun after conviction for a misdemeanor crime of domestic violence, Justice Thomas – for the first time in 10 years – broke his customary silence on the bench to ask a government lawyer whether any other constitutional right can be taken away after being found guilty of a minor crime.  That has been taken by some observers as an indication that Thomas may say something more broadly about the scope of the Second Amendment when the court decides that case — Voisine v. United States — between now and the end of June.)

Because the Supreme Court did not explain its reasoning in December for turning aside the Highland Park case, its denial did not create any new precedent on assault-weapon laws that would apply outside of the area of the Seventh Circuit Court.

That denial, though, has only enhanced the visibility of the new cases reaching, or on their way to, the Supreme Court.

As assault weapons cases are examined in lower courts, here are the key issues that have been coming up regularly (none of which has yet been answered by the Supreme Court):

First, do assault-weapons and high-volume magazines get any protection under the Second Amendment, or are they outside of it in the same way that a military machine gun would be?

Second, is such a flat ban unconstitutional when the weapon involved is highly popular, and thus is recognized as one that is in common use – one of the factors that the Supreme Court has said should be considered?

Third, is such a flat ban always unconstitutional because it allows no exceptions, and thus puts such a commonly used weapon completely out of the hands of even trustworthy, law-abiding citizens?

Fourth, is the fact that the weapon is very much like the one that the military has traditionally used on the battlefield (the M-16) an indication that it should not be allowed for the general public – that is, is it too dangerous?

Fifth, if the Second Amendment does provide some protection for private possession of assault weapons and high-capacity magazines, how rigorous should the constitutional test be?  Should it be the tough test of “strict scrutiny,” or something less demanding?

It is apparent that the issue is one that will continue to arise in lower courts, although there is no certainty that the Justices will step in to provide answers to those questions.  In the eight years since the Supreme Court opened this constitutional discourse with its initial ruling in District of Columbia v. Heller, the Justices have issued only one ruling on the type of weapons that might qualify for protection under the Second Amendment.  In a Massachusetts case, the court in March told a state court to reconsider a ruling that had upheld a ban on stun guns – weapons that send an electronic pulse that is capable of disabling or injuring a person.

At some point, the Justices may find a need to speak more expansively on the issue.  However, with only eight Justices currently on the bench, it is an open question whether the court will be willing to step in, when there could be the prospect of a 4-to-4 split, which would settle nothing.

9 thoughts on “Is there a constitutional right to have a rapidly firing assault gun?

  1. “Is there a constitutional right to have a rapidly firing assault gun?”

    Yes, there most certainly is, and any accurate assessment of the Bill of Rights and its intent would say it’s more of a necessity than a right.

    “The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans.” — Tench Coxe

    “every terrible implement of the soldier” means we NEED “rapidly firing assault guns” to be on par with a modern military that we may have to defend our country from.

    WE ARE THE U.S. ARMY……not the high-heeled, panty-wearing boys in uniform. THEY are the bankers’ army.

  2. I am waiting for the courts to decide the only Constitutional arms are muzzle loading black powder muskets with bayonets.

  3. There was a gun in use at the time the bill of rights were written. That was the girardoni air rifle. A self loading rifle that in those days was the equivalent of any semi auto today. So did the founders anticipate that there would be semi auto or rapid firing guns in the future? Not only anticipated it but knew it. The right of the people to keep and bear ARMS shall not be infringed. Period.

  4. *** First, do assault-weapons and high-volume magazines get any protection under the Second Amendment… ***

    Yes, obviously.

    *** …or are they outside of it in the same way that a military machine gun would be? ***

    Machine guns aren’t outside of the Second Amendment. They are included in “every terrible implement of the soldier.”

    Clearly the Founders intended for the people to possess the means to overthrow their own government. That’s what the Second Amendment is about.

    Even if the Founders HADN’T intended this, we would still have the right to own military weaponry (arguably excepting indiscriminate weapons such as nukes). The right follows from the simple observations that (1) no one has any inherent right to rule over other people, and (2) a substantial imbalance in armed capability between two parties leads to the rule of one party by the other.

    1. “Clearly the Founders intended for the people to possess the means to overthrow their own government. That’s what the Second Amendment is about.”

      Everything you said was correct except for this sentence. Before you get ticked off, let me explain – then if you still feel that way then so be it.

      The founders intended that those who serve within our government to NOT be armed, and that intention is put forth in the having ONLY the congress being able to declare war (Article 1, Section 8, Clause – the only way any American can lawfully be sent to fight in a military unit), and in the Militia Clauses assigning the duties to the Militia found in Article 1, Section 8, Clauses 15 & 16. Clause 15 lays out the duties that those that serve within our governments are REQUIRED to use the Militia for – which means they are forbidden to use any other agency or group for those actions.

      James Madison: “… large and permanent military establishments … are forbidden by the principles of free government, and against the necessity of which the militia were meant to be a constitutional bulwark.”

      Tench Coxe: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American… THE UNLIMITED POWER OF THE SWORD IS NOT IN THE HANDS OF EITHER THE FEDERAL OR STATE GOVERNMENTS BUT, where I trust in God it will ever remain, IN THE HANDS OF THE PEOPLE.”

      Clause Clause 11: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”.

      Notice that the congress has the duty to grant Letters of Marque and Reprisal here also. So what is the meaning of the words “Letters of Marque and Reprisal “? This is using private citizens in their own privately owned crafts to defend the USA and her people, this is using them as the Militia when they are needed to enforce the US Constitution, the laws, or to defend the people and the nation.

      We are NOT to have a permanent military, those of us who serve as the Militia are to be trained as the congress requires the military to be trained so that we can defend our nation, and if needed, a military can be taken from those ranks.

      Thomas Jefferson, 1st inaugural, explained that: “a well-disciplined militia” is “our best reliance in peace and for the first moments of war, till regulars may relieve them” and also a guarantee of “the supremacy of the civil over the military authority; [and] economy in the public expense.”

      Rep. Elbridge Gerry of Massachusetts, floor debate over the 2nd Amendment, I Annals of Congress: “What, Sir, is the use of a militia? It is to PREVENT THE ESTABLISMENT OF A STANDING ARMY, the bane of liberty….”

      Tench Coxe, ‘Remarks on the First Part of the Amendments to the Federal Constitution’ on the Second Amendment where he asserts that it’s the people with arms, who serve as the ultimate check on government: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms”.

      Clause 15: “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions.“

      Each state’s Militia is made up of “We the People” protecting our own interests, homes, states, nation, and enforcing our governments. The Militia has as its constitutionally assigned duties to:
      — Enforce the US Constitution (supreme LAW) and each state’s Constitution (highest LAW of the state),
      — Enforce and keep the “Laws of the Union” (which are constitutional laws ONLY),
      — Protect the country against all enemies both domestic and foreign, and
      — “to suppress Insurrections and repel Invasions”.

      The militia of each state is entrusted with the defense of the USA and her people, not just with the defense of their state; and they are to be armed with weapons that can repel any invasions bearing modern weapons of war. Congress is required to provide those military grade weapons for the militias in Clause 16.

      Clause 16 lays out the duties those that serve within our governments- state and federal – have TO the Militias.

      Clause 16: “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”.

      But it goes much further, those that serve within our governments were NEVER delegated the authority to stop us from creating and producing – nor to regulate those actions -our own arms, including and particularly military arms. Think not, then what do you think these words from this ex general and ex US President means?

      George Washington: “A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.”

      We are the ones who must be trained as congress requires the military to be trained for our own protection FROM those who serve within our governments. But in order for our actions to be lawful and in defense or protection of our nation we are also required to be knowledgeable about the US Constitution and our own state Constitution as they are the CONTRACTS that all who serve within our governments are under.

      It is those documents that is our government, NOT the people who serve within it, that was/is our safety net; that and that we are lawfully the enforcing arm of our governments. If there is Militia in each state trained in the way the congress requires the military to be trained and in the US and their own state Constitutions; those that SERVE WITHIN our governments are REQUIRED to use them, and forbidden in writing to use any other group, agency, etc for those actions listed.

      John Adams, A Defense of the Constitutions of the United States 475: “To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.”

      Alexander Hamilton, The Federalist Papers 28: “The militia is a voluntary force not associated or under the control of the States except when called out; [when called into actual service] a permanent or long standing force would be entirely different in make-up and call.“

      That is why it is now, as it always has been, up to us.

  5. Is there a Constitutional Right to have a rapidly firing assault gun?

    This is nothing but a bullshit, “Let’s just talk about it” Commie question.

    2nd Article: “The Right of the people to KEEP and BARE ARMS SHALL NOT BE INFRINGED.” PERIOD!!!

    That means if we wanted to make a rocket launcher and use it to protect ourselves, then we can.

    Hang anyone for treason who thinks otherwise!!! 😡

  6. “Eight years after the Supreme Court recognized an individual’s right under the Second Amendment to have a gun for personal self-defense,…”


    Did one of those traitors actually READ the 2nd for a change???

    Regardless, it’s an UNALIENABLE right to begin with… the 2nd merely reaffirms that right.

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