By TAL KOPAN | 8/8/12 12:55 PM EDT
In the wake of recent mass shootings, the White House (under pressure from gun control advocates) has said it generally supports a federal assault weapons ban, though Congress is not moving in that direction. But if Congress were to act, would an assault weapons ban be constitutional?
Assault weapons bans have mostly been adjudicated in state courts thus far, where judges have generally been inclined to uphold them, according to Professor Adam Winkler of the UCLA School of Law. A federal ban, however, were it to end up before the Supreme Court, would most likely be evaluated in terms of the Second Amendment without much regard to state precedent, Winkler said.
The federal courts have not given much previous guidance on whether a federal assault weapons ban would pass Second Amendment muster, but Winkler says he suspects one would be upheld by the Supreme Court.
“In the Heller case, the courts said a handgun ban is not constitutional because handguns are in ‘common use,’” which is a common standard in jurisprudence, Winkler said. “A shoulder-launched missile is not in common use for self-defense; a machine gun is not in common use. The assault rifle is a slightly more difficult question. … I suspect [the court] would uphold such a ban, especially after such high-profile shootings. And I suspect that many judges, like many other people, would believe you don’t need an assault weapon for self-defense.”
In June 2010, the Supreme Court’s ruling in McDonald v. Chicago extended to states the decision in District of Columbia v. Heller, which held that a D.C. ban on owning handguns violated the Second Amendment. The decision in McDonald struck down Chicago and Oak Park’s handgun bans by incorporating the Second Amendment through the 14th. Since the invalidation of handgun bans, both pro- and anti-gun advocates have turned their attention to assault weapons bans.
And in Heller, Scalia, writing for the majority, seems to indicate that restrictions on certain types of weapons remain constitutional.
“The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” Scalia wrote. But he also said a 1939 Supreme Court case, United States v. Miller, allows for limitations on the right to bear arms, “supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
“We … read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,” Scalia writes.
A follow-up to Heller, Heller v. District of Columbia (known as “Heller II”) challenged laws prohibiting large-capacity ammunition magazines and assault weapons. In October 2011, the D.C. Circuit Court ruled 2-1 to uphold those bans as constitutional, remanding certain registration requirements back to the lower court for further review. Judge Douglas Ginsburg, delivering the opinion of the court, used the logic of the first Heller to conclude some restrictions on the Second Amendment are constitutional. He says these restrictions must pass an “intermediate scrutiny test” — and the court found the assault weapons ban in question did.
“To pass muster under intermediate scrutiny the District must show [registration requirements] are ‘substantially related to an important governmental objective,’” and the means must be a “close fit” with the ends, Ginsburg writes.
Also working its way through the courts is Wilson v. Cook County, which challenges a Cook County, Ill., assault weapons ban. An Illinois appellate court was ordered by the Illinois Supreme Court to reconsider the case in light of the McDonald ruling. More…