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The AR-15 And The Second Amendment: No Respect

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Heller II
Such was the challenge to the District of Columbia’s “assault weapon” ban brought by the NRA. The case is known as Heller II, since the lead plaintiff is Dick Heller, the winning plaintiff in the first Heller case. In the case, Heller
and several other D.C. gun owners challenged the ban, along with several other provisions of the District’s laws.

D.C.’s “assault weapon” ban is the most extreme in the nation. The D.C. Council has outlawed all semi-auto firearms that take detachable magazines and that have one or more characteristics from a list of supposedly military features. The District also bans “[a]ny firearm that the Chief may designate as an assault weapon by rule, based on a determination that the firearm would reasonably pose the same or similar danger to the health, safety, and security of the residents of the District as those weapons enumerated.”

The attorneys arguing the case for Heller and the other plaintiffs were longtime gun law experts Stephen Halbrook and Richard Gardiner. The mass of evidence they presented proved beyond any doubt that the AR-15 is a very common firearm and is typically used by law-abiding citizens for lawful purposes. Of course, they also presented evidence about the other guns banned by D.C.

When the case got to the United States Court of Appeals for the District of Columbia, the three-judge panel split 2-1, with two of the judges voting to uphold the D.C. ban. Judge Douglas Ginsburg (no relation to Supreme Court Justice Ruth Bader Ginsburg) wrote the opinion for the majority.

He accepted the plaintiffs’ proof about the common use of AR-15s: “We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in ‘common use,’ as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000.”

But, Judge Ginsburg continued, even if AR-15 rifles and normal sized magazines are protected by the Second Amendment, they may still be banned.

How could this be?

In modern constitutional law jurisprudence, one of the common ways for judges to examine an issue is through “tiers” of “scrutiny.” First, the judge decides if something is part of a constitutional right. According to Heller II, rifles like the AR-15 are part of the Second Amendment right. (In contrast, according to the Supreme Court’s original Heller decision, machine guns are not part of the Second Amendment right.)

Once it has been ascertained that something is part of a right, then the court decides to apply either “strict scrutiny” or “intermediate scrutiny.” The strict scrutiny test requires that the government have a “compelling” interest, and that the law be “necessary” to achieve that compelling state interest. Examples of issues that trigger strict scrutiny are government suppression of speech based on the content of the speech, as well as government discrimination on the basis of race.

In other constitutional situations, a court will apply “intermediate scrutiny.” Then, the government must have an “important” interest, and the law must have a “substantial” relationship to achieving that interest. Intermediate scrutiny is applied to government discrimination on the basis of sex, and to “time, place and manner” regulation of speech in public places.

The Supreme Court in Heller did not say whether the strict/intermediate system should be used in Second Amendment cases. However, since Heller many lower courts have been using this system, since it is familiar and well developed.

Judge Ginsburg in Heller II said that intermediate scrutiny should apply to the D.C. ban on semi-auto rifles. Relying heavily on the Brady Campaign’s testimony at a D.C. Council hearing, the judge announced that semi-auto rifles are so dangerous that the D.C. ban passed intermediate scrutiny.

Faulty Reasoning
The majority’s reasoning in Heller II had several problems. First of all, the judges picked the wrong standard. As First Amendment jurisprudence shows, when the government regulates how a right is exercised in a public place, then intermediate scrutiny may be the appropriate standard. But when the government entirely bans one form of exercise of the right, then strict scrutiny is necessary. Because the D.C. law was a total ban on possession of many firearms in the home, rather than a regulation about how they could be used or transported in public, strict scrutiny should have been the rule.

Second, dissenting Judge Brett Kavanaugh pointed out the error in how the majority actually used strict scrutiny. Under Heller, semi-auto handguns, as a general class, are constitutionally protected. (That’s because Heller protects handguns in general, and 80 percent of new handguns are semi-autos.) Therefore, the mere fact that a long gun is semi-automatic cannot be a constitutionally legitimate reason to ban it. As Judge Kavanaugh wrote, “In attempting to distinguish away Heller’s protection of semi-automatic handguns, the majority opinion suggests that semi-automatic rifles are almost as dangerous as automatic rifles (that is, machine guns) because semi-automatic rifles fire ‘almost as rapidly.’ … Putting aside that the majority opinion’s data indicate that semi-automatics actually fire two-and-a-half times slower than automatics, the problem with the comparison is that semi-automatic rifles fire at the same general rate as semi-automatic handguns. And semi-automatic handguns are constitutionally protected under the Supreme Court’s decision in Heller. So the majority opinion cannot legitimately distinguish Heller on that basis.”

The majority had swallowed the Brady Center’s absurd claim that semi-auto rifles with detachable magazines are designed for  “offensive military” action. Judge Kavanaugh noted that officers of the D.C. Metropolitan Police Department carry semi-auto rifles in their patrol cars. The only reason for D.C. police to carry any type of firearm, including a rifle, would be for lawful self-defense or defense of others.

Accordingly, the actions of the D.C. police prove the falsity of the D.C. Council’s claim that semi-auto rifles are primarily for offensive military use. And there is the obvious fact that the many millions of Americans who have owned such rifles for decades have been using them for lawful defense and for sport—not for “offensive military” purposes.

Judge Kavanaugh also argued that the Supreme Court in Heller had refused to employ the strict/intermediate scrutiny system. Instead, the Court had suggested that the gun controls that were “presumptively lawful” (e.g., bans on gun possession by felons or the mentally ill; regulations on the commercial sale of firearms) were those that had a solid basis in American history and tradition. But bans on semi-auto rifles have no such basis in history and tradition. Indeed, D.C.’s extremely broad ban has no counterpart anywhere else in the United States, or ever in American history.

What comes next depends on this November’s elections. The Constitution gives Congress plenary power over D.C., so Congress could pass, and a new president could sign a law repealing the outrageous Second Amendment violations in our nation’s capital. Obama, however, would certainly veto such a law.

Second, the president who is elected in 2012 will likely have the opportunity to make several Supreme Court appointments. One more Obama appointment could be enough to overturn the 5-4 Heller decision. Or an Obama court could interpret Heller in a constricted manner, as did the judges in James and Heller II, thereby giving sanction to semi-auto bans and other restrictions nationwide.  That’s an issue that every AR-15 owner, and every gun owner, should remember on Election Day.

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