Assault Weapons Ban and the Second Amendment

            Interpreting the Constitution has long been a hallmark of American society and in the aftermath of the numerous gun-related tragedies over the past two years, one particular aspect of the document has found itself under intense scrutiny.  The Second Amendment, part of the Bill of Rights ratified in 1791, protects the right of private citizens to possess arms, although its language causes confusion and strife in today’s society.  While it is tempting to attack the amendment, one must be careful when scrutinizing any constitutional amendment, taking into account the language, the original impetus and modern interpretations via court cases.

            The original ten amendments, ratified shortly after the adoption of the Constitution, were intended to formally protect rights of citizens from infringement by the national government.  While one of these has largely been rendered useless (the Third Amendment), all the rest continue to reverberate in today’s society as much as in their original form.  The Second Amendment has become likely the most controversial Bill of Rights amendment, particularly in the past decade as a wave of gun violence has swept the nation.

            The text of the Second Amendment is as follows:  “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.”  These twenty-seven words can be endlessly interpreted, and indeed have been.  From those favoring restriction of gun-rights, the word “Militia” stands out as a favorite target.  In modern society, with a codified militia in the form of the National Guard, gun-control activists believe that since informal militias no longer exist the right to bear arms is no longer necessary.  Another key phrase in the eyes of gun-control proponents is “well regulated.”  Even if the amendment is interpreted to allow firearm possession outside of a militia context, the “well regulated” aspect must come into play, allowing for regulations and restrictions on gun ownership to be constitutional as long as they do not infringe too greatly on the ability of private individuals to possess firearms. 

            In the anti-gun control camp, the word “necessary” and the third clause “the right of the people to keep and bear Arms” are particularly important.  First, “necessary” implies a degree of self-sovereignty, where each citizen has the authority to determine what is “necessary” for the security of a free state.  If one believes that the security is threatened, to some extreme right-wingers by the government itself, than that citizen has the right to possess arms in order to help ensure the security in the future.  Additionally, “the right of the people to keep and bear Arms” is often interpreted by the pro-gun lobby as a completely separate clause than the “Militia” clause.  Due to this difference, the pro-gun lobby argues that involvement in a militia is not a prerequisite for gun ownership. 

            While both of these viewpoints are valid, upon an examination of the text of the Second Amendment, one has a hard time justifying the possession of assault weapons by private individuals.   While a militia could be permitted to possess such military-grade weapons, the existence of the National Guard renders such a point moot.  Additionally, the stipulation that the militia must be well regulated, if carried over to the general-possession right, allows for the government to regulate and restrict what types of firearms be permissible for a private individual to own.  Since a restriction on assault weapons would not ban handguns, rifles, or shotguns, it can clearly be interpreted as a constitutional ban.

            The original impetus for the Second Amendment also must be taken into account when judging its merits.  As one of the original ten amendments, the Second Amendment has a high degree of import as it is generally regarded that the rights and liberties protected by the Bill of Rights were vital enough to be listed by name, as opposed to the wide blanket coverage of what could be interpreted as lesser-rights by the Ninth Amendment.  The Second Amendment is almost inseparable from the right to defend one’s self, be it in the form of defense from a personal attacker or from a tyrannical government.  While the latter threat exists only in the paranoid minds of the most extreme right-wingers, the former is still very much an issue in today’s American society. 

            The majority (67% according to a 2005 Gallup poll) of gun owners cite self-defense as their primary reasoning for owning a firearm.  Self-defense is not only the most popular justification, but also the most enduring.  The elimination of crime is a virtual impossibility, meaning that there is always a chance that an individual will be the victim of a crime.  Possessing a firearm often can put one’s mind at ease, believing that since he or she carries a gun not only will criminals think twice before attacking, but also that he or she will be able to protect themselves instead of being at the mercy of their attacker.

            As personal self-defense is the only justification for the Second Amendment which is still applicable today, one must examine the self-defensive capabilities of firearms when determining if legislation curtailing their sale and possession is constitutional.  In the realm of assault weapons, it does not take long to realize that such firearms are not only unnecessary for self-defense, but also impractical. 

            The AR-15 assault rifle is one of the most common assault weapons possessed by Americans; varying models of this firearm were used in both the Aurora theatre shooting and the Newtown tragedy.  The AR-15, depending on the variety, can fire up to eight hundred rounds per minute; weighs approximately eight pounds; has a range of over five hundred yards; and is about three feet long.  The most plausible scenario in which one would have to use an AR-15 in self-defense is straight out of Red Dawn. The sheer power of the weapon, if used against a burglar, is akin to cracking open a peanut by dropping an anvil on it.

            The AR-15 is also simply an impractical self-defense option due to its size and weight.  Outside the home, a concealed handgun can logically be a helpful weapon in a defensive capacity.  If seen by a potential criminal, said criminal would be less likely to attempt to victimize the individual carrying the firearm.  For obvious reasons, carrying an assault weapon outside the home is simply unrealistic.  Inside the home, in the event of a break-in, a handgun is the ideal weapon—they are small, meaning that they can be kept in a nightstand drawer in a position easily obtained when in danger.  An assault rifle, particularly one as big and heavy as the AR-15, would most likely be kept in a gun cabinet which would lengthen the time the homeowner is unarmed during a break-in. 

            The Second Amendment has been interpreted in numerous Supreme Court cases over the history of the United States.  One of the earliest cases, Robertson v. Baldwin (1897), saw Justice Henry Brown deliver the majority opinion in which he stated that “the right to bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”  This was a vital first step, as it created the precedent that laws restricting certain aspects of gun ownership do not necessarily equate to an unconstitutional prohibition of gun ownership. 

            The next case, United States v. Miller (1939), created two more important precedents in the judicial interpretation of the Second Amendment.  First, it held that a ban on a specific type of firearm (in this case, a “shotgun having a barrel of less than eighteen inches in length”) was constitutional as such a ban did not prove to be a substantial barrier to a well regulated militia.  While this was the first instance in which a comprehensive ban of a specific weapon was ruled constitutional, the second precedent likely had more of an impact on subsequent gun control jurisprudence.  In a footnote of Justice James McReynolds’ majority opinion, he explained that even in militias, the men “were expected to appear with bearing arms supplied by themselves…”    This vital distinction transformed the Court’s position on the Second Amendment from one focusing on militia aspects to the modern, personal-use position on firearms.

            The Supreme Court was quiet on gun control over the next several decades, until it heard two cases in two years, District of Columbia v. Heller (2008), and McDonald v. Chicago (2010).  In both of these cases, the Court ruled that laws prohibiting the possession of handguns in a private residence was unconstitutional; Heller in federal districts and McDonald in states.  With hardly a mention of militias in either case, these two cases cemented the Court’s viewpoint of gun control on private possession.  Heller and McDonald focused primarily on handguns, meaning that an assault weapons ban could potentially hold up to judicial scrutiny.

            The question is if, based on Robertson, Miller, Heller, and McDonald, an assault weapons ban could indeed be deemed constitutional by the Supreme Court.  Heller and McDonald primarily focused on ownership of a firearm in a residence while Robertson and Miller centered on whether or not restrictions and complete bans on specific types of firearms.  Since the residence-bans on handguns were ruled unconstitutional but the outlaw of particular models were ruled constitutional, a ban on private ownership of assault weapons could be found constitutional by the Court, unless it is worded poorly.

            In the aftermath of national tragedies, legislation is often passed in response to the cause of the horror.  In the case of the last two years, the cause is undoubtedly guns; assault weapons in particular.  While it is tempting to besiege guns in general, the Second Amendment sustaining most of the ire, such a comprehensive ban is not only inadvisable, but also unjustified.  A prohibition of assault weapons, however, is a justifiable and logical remedy.  An examination of the text, history, and judicial interpretation of the Second Amendment offers a glimpse into the realistic possibility that such a ban not only could pass, but also would be within the tradition of the amendment itself.